General Terms and Conditions for Deliveries and Services of Mineralmahlwerk Hamm GmbH

(Version: September 2024)

1. Scope of Application

   1. These General Terms and Conditions for Deliveries and Services (“Terms“) shall apply in business transactions with entrepreneurs within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”), legal entities under public law or special funds under public law (each referred to as “Customer“) for the current contract and as a framework agreement for all future contracts in ongoing business relationships with the Customer. All deliveries and services including ancillary and additional services (collectively “Deliveries“) shall be based on these Terms.
   2. Any and all conflicting terms and conditions or terms and conditions deviating from these Terms or from statutory provisions shall not apply unless we have expressly agreed to their validity in writing. This shall also apply if we have not expressly objected to them or if we have carried out Deliveries without reservation or accepted payments without reservation.

1. Conclusion of Contract

   1. Unless expressly stated otherwise in writing, our offers are subject to change and non-binding.
   2. We can accept orders and other contractual offers of the Customer within 14 calendar days after their submission. Orders are irrevocable until the expiry of this period. Our declarations (in particular order confirmations) relating to the conclusion of contracts must be made in writing. This requirement of the written form does not include informal post-contractual amendments and supplements. We shall also remain entitled to constitute the conclusion of a contract by executing our Deliveries without reservation or by invoicing Deliveries in whole or in part. Our silence shall not constitute any reliance on the conclusion of a contract.
   3. Our sales employees are not entitled to make verbal amendments and supplements that go beyond the content of the concluded written contract.
   4. If a letter of confirmation from the Customer deviates from our order confirmation or extends or restricts it, the Customer shall emphasise the deviations as such.

2. Scope of Deliveries

   1. The agreed components of the Deliveries are conclusively listed and specified in the order confirmation, including any attachments thereto.
   2. Drawings, illustrations, dimensions, weights, tests, test certificates, manufacturer’s declarations, other performance data, advice or information are only binding if and insofar as this is expressly agreed in writing. Unless expressly agreed in writing, we neither grant a guarantee of quality or durability nor do we assume any liability for a specific intended use or a specific suitability. The risk of suitability and use shall besides be borne by the Customer.
   3. Storage goods or raw goods shall only be insured against damage – even if they have been handed over to us for grinding by the Customer or a third party commissioned by him – at the express request of the Customer. This also applies to insurance of load against transport damage. The costs shall be borne by the Customer in each case.
   4. A transfer or granting of rights in connection with the Deliveries shall not take place unless expressly agreed otherwise in writing. This applies in particular to any work results, industrial property rights, applications for industrial property rights, inventions, know-how, any rights subject to copyright, as well as to all documents or data provided by us in physical or electronic form in connection with the Deliveries. Insofar as the Customer is granted rights in connection with the Deliveries, these are limited to the specific contractually agreed purpose.

3. Prices and Terms of Payment

   1. Unless expressly agreed otherwise in writing, the weight of the delivery items shall be decisive for their price. Any quantities, bundle numbers etc. stated in the contract and delivery documents are non-binding in this respect.
   2. Unless expressly agreed otherwise in writing, the prices are FCA (our factory) in accordance with the Incoterms 2020, excluding collection, packaging, preservation, insurance, laboratory services, unloading, freight, release, disposal and other ancillary costs, plus the applicable value added tax, if applicable. In the case of cross-border Deliveries, all customs duties, taxes, fees or other public charges incurred shall also be reimbursed to us by the Customer.
   3. Unless expressly agreed otherwise in writing, the agreed price shall not include any remuneration for waiting times and other delays for which we are not responsible, or for deliveries or services that deviate from or are in addition to the Deliveries. Any additional expenditure which we could not foresee due to special circumstances and for which we are not responsible, and which exceeds the expenditure normally to be expected, is also not compensated. Costs not included in the agreed price shall be invoiced separately.
   4. Unless expressly agreed otherwise in writing, our invoices are payable in euros without deduction within 14 calendar days of delivery and receipt of invoice by the Customer. The receipt of payment by us shall be decisive for the timeliness of payment. Bank charges and expenses shall be borne by the Customer.
   5. In the event that our claims are jeopardized by a significant deterioration in the creditworthiness of the Customer, which becomes apparent after conclusion of the contract, we are entitled to perform outstanding Deliveries only against advance payment or provision of an appropriate security. If the Customer fails to make an advance payment or provide adequate security within a reasonable period of time, we are entitled to withdraw from the contract. Our other rights shall remain unaffected.
   6. The Customer shall only be entitled to rights of set-off and retention against our claims insofar as counterclaims against us have been legally established or are undisputed, or the counterclaim originates from the same contractual relationship.
   7. If the costs for the manufacture and delivery of the respective delivery items concerned (e.g. raw material prices, energy, labour, packaging, transport or insurance costs) increase significantly between the time of conclusion of the contract and the agreed delivery date – not foreseeable for us and for which we are not responsible – we shall be entitled at our reasonable discretion (Section 315 BGB) to increase the prices appropriately, taking into account the change in costs and the justified interests of the Customer. As a rule, a significant increase in the costs for the manufacture and delivery of the delivery items concerned shall be deemed to exist if these have increased by more than 5% since the time of conclusion of the contract or after the last price adjustment up to the agreed delivery date.

4. Deliveries and Delivery Dates

   1. We deliver FCA (our factory) in accordance with Incoterms 2020, unless expressly agreed otherwise in writing.
   2. If expressly agreed in writing, we shall deliver the delivery items packaged as is customary in the trade (e.g. in big bags or sacks). Any packaging that goes beyond the transport purpose known to us or any other special protection, e.g. for longer-term storage of the delivery items, shall require an express written agreement.
   3. Partial, excess or short Deliveries are permissible insofar as they are reasonable for the Customer. The same applies to premature Deliveries.
   4. Delivery dates are only binding if this has been expressly agreed in writing with the Customer. Agreed delivery dates are also subject to the timely clarification of commercial and technical details (in particular the provision of the necessary information, documents and approvals by the Customer) and the timely and correct fulfilment of all obligations to cooperate by the Customer. Our delivery obligations are also subject to the proper and timely delivery by our suppliers.
   5. We are entitled to adjust the delivery dates at our reasonable discretion if the conditions specified in Section 5.4 are not met in good time.
   6. In the event of a delivery according to Section 5.1, the agreed delivery dates shall be deemed to have been met upon notification to the Customer that the delivery items are ready for dispatch. This shall also apply if the deliveries cannot be dispatched on time, unless we are responsible for this.
   7. If the Customer culpably breaches an obligation to cooperate, we shall be entitled, without prejudice to other claims, to demand compensation for the resulting damage (e.g. additional expenses).

5. Delay in Delivery

   1. In the event of a delay in delivery (“Lieferverzug”), our liability is limited as follows: The Customer’s claim for damages due to delay is limited to 0.5% of the net price of the delayed Delivery for each full week of delay, up to a maximum of 5% of the net price of the delayed Delivery. This limitation shall not apply in the event of liability due to intent or gross negligence or injury to life, limb or health.
   2. If the collection or dispatch of the Deliveries is delayed by more than four (4) weeks after notification of readiness for dispatch for a reason for which the Customer is responsible, we shall charge the Customer a storage fee from the end of this period in the amount of our current storage fee price list, which we will send to the Customer on request.
   3. The Customer may only withdraw from the contract due to delayed delivery in accordance with the statutory provisions if we are responsible for the delay or if the Customer cannot reasonably be expected to adhere to the contract due to the delay. Statutory rights of cancellation remain unaffected by this.
   4. At our request, the Customer must declare within a reasonable period of time whether he is cancelling the contract due to the delay in Delivery or whether he continues to insist on Delivery.
   5. The above provisions do not imply a change in the burden of proof.

6. Transfer of Risk and Acceptance

   1. The risk of accidental loss and accidental deterioration of the Deliveries – including partial Deliveries – shall pass to the Customer if and insofar we have made the Deliveries available for collection at the agreed place of delivery and have notified the Customer thereof, at the latest when and to the extent we have handed over the Deliveries to the carrier.
   2. Should we deliver the delivery items in deviation from clause 5.1, this shall be done – unless otherwise agreed – on the basis of DAP (place of delivery specified by us) in accordance with Incoterms 2020; however even in this case, the risk of accidental loss and accidental deterioration of the delivery items shall pass to the Customer when they are handed over to the forwarding agent or carrier, but at the latest when they leave our factory.
   3. In the case of a contract to produce a work (“Werkvertrag”), the risk of accidental loss or accidental deterioration shall pass to the Customer as soon as the produced work is under the control of the Customer, but at the latest upon the respective (partial) acceptance.
   4. If acceptance is required by law or has been agreed, the Customer must carry out acceptance within two (2) weeks of our notification of readiness for acceptance. If this is not done or not done in full, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place when the Delivery is put into use. The Customer is not entitled to refuse acceptance due to minor defects.
   5. If Deliveries are delayed for reasons for which the Customer are responsible, the risk of accidental loss and accidental deterioration of the Deliveries shall pass to the Customer at the time at which it would have passed to the Customer without the aforementioned circumstances. In the event of default of acceptance (“Annahmeverzug”) by the Customer, the risk shall pass to the Purchaser at the time of default of acceptance.

7. Quality, Dimensions and Weights

   1. Quality, dimensions and weights shall be determined in accordance with the DIN/EN standards applicable at the time of conclusion of the contract or, in the absence of such standards, in accordance with commercial practice. Customary deviations in the quality, dimensions and weights of the Deliveries shall not, however, entitle the Customer to make complaints or claims for defects, unless otherwise expressly agreed in writing.
   2. The weights of the delivery items shall be determined on our calibrated scales. Proof of weight shall be provided by submitting the weighing record or other suitable documentation. If individual weighing does not normally take place, the total weight of the Delivery shall apply. Differences compared to the calculated individual weights shall be distributed proportionally among these. Bags are weighed gross for net. The weighing costs shall be borne by the Customer. Our measurement results can only be objected to on the basis of official re-weighing.
   3. Customary abrasion of balls and armouring or of the grinding media and linings otherwise used shall not be considered as contamination and shall not entitle to complaints about the delivery items and claims for defects.

8. Contract Grinding

   1. If grinding of regrind is agreed which is not purchased from us (“Contract Grinding“), the Customer must deliver the regrind to our plant in good time and in the agreed quantity at his own expense.
   2. The Customer is obliged to inform us of all safety-relevant characteristics of the regrind (“Mahlgut”) and the current safety information in good time before the Contract Grinding is carried out. If no production specifications have been agreed with the Customer, we shall carry out the Contract Grinding in accordance with our production specifications at our reasonable discretion.
   3. The regrind must be of the agreed quality upon delivery to us and must be free of defects (in particular free of foreign bodies, metal inclusions and other impurities) and suitable for grinding in our systems. We reserve the right to claim additional costs if the regrind is not delivered in accordance with the contract.
   4. Unless expressly agreed otherwise, the price for Contract Grinding includes the costs from receipt of the raw materials free tipped in our factory to free lorry loading. Storage costs are charged separately. If the regrind is received in non-tippable lorries, unloading costs and the costs of disposing of the packaging will also be charged separately.
   5. In the case of regrind delivered by the Customer or a third party commissioned by the Customer, no right to the Delivery of corresponding quantities of finished goods can be derived from the delivered weight. In addition to the customary drying loss, the Customer must expect the customary grinding loss. The price for Contract Grinding shall be determined by the weight of the regrind before Contract Grinding and not by the weight of the finished product.
   6. All scrap and mineral residues resulting from Contract Grinding shall be disposed of by us at the Customer’s expense, unless expressly agreed otherwise.
   7. The Customer is obliged to inspect the Deliveries for their conformity with the contract at the latest before processing or further despatch. Deliveries destined for foreign countries must be inspected accordingly by the Customer before loading ex works. Defects must be reported immediately after their discovery. Otherwise, the Deliveries shall be deemed to have been approved. For purchase contracts (“Kaufverträge”) and contracts for work and materials (“Werklieferungsverträge”), Section 11.2 shall apply exclusively instead of Section 9.7.
   8. To secure our claims arising from the respective contract for Contract Grinding with the Customer, we shall be entitled to a right of lien from the handover of the customer’s relevant regrind to the Customer. The right of lien can also be asserted for claims arising from earlier Deliveries, insofar as they are connected with the respective contract for Contract Grinding. The contractual lien shall only apply to other claims if they are undisputed.
   9. Unless expressly agreed otherwise, we shall store the regrind free of charge for the Customer for three (3) months. After expiry of this period, we are entitled to charge the Customer storage costs for the further storage of the regrind in accordance with our current storage fee price list, which we will send to the Customer on request.
   10. The regrind delivered to us by the Customer for Contract Grinding shall be insured by the Customer at his own expense against theft, breakage, fire, water and other risks at replacement value – also during its storage and Contract Grinding at our plant.

9. Retention of Title

   1. We retain title to all delivery items (“Reserved Goods“) until fulfilment of all our claims against the Customer arising from the respective contract.
   2. The Customer is obliged to cooperate in all measures which are necessary to protect our retention of title; in particular, the Customer authorises us upon conclusion of the contract to make any necessary entry or priority notice of our retention of title in public registers at the Customer’s expense and to fulfil all other formalities required under the applicable property law. Insofar as the legal system applicable at the place of performance does not recognise our retention of title, the Customer undertakes to cooperate in the creation of a comparable security interest in Reserved Goods.
   3. The processing or transformation of the Reserved Goods by the Customer shall always be carried out free of charge for us as the manufacturer within the meaning of Section 950 BGB. The Customer shall store the new item for us with the due care of a prudent businessman. The new items shall be deemed to be Reserved Goods. If Customer processes, combines or mixes the Reserved Goods with other items, we are entitled to co-ownership of the new item in the ratio of the invoice value of the Reserved Goods to the invoice value of the other goods used. If our retention of title expires due to combining or mixing, the Customer hereby transfers to us the ownership rights to which it is entitled to the new stock or the new item to the extent of the invoice value of the Reserved Goods and shall store them for us free of charge. Our (co-)ownership rights arising hereunder shall be deemed to be Reserved Goods.
   4. The Customer is obliged to store the Reserved Goods separately from other items belonging to the Customer or third parties, to mark them as our ownership, to treat them with care, to maintain them at his own expense for the duration of the retention of title and to insure them in our favour against theft, breakage, fire, water and other risks at replacement value. The Customer shall carry out any necessary maintenance and inspection work on the Reserved Goods at his own expense and risk. The Customer hereby assigns to us all claims for compensation arising from such insurance policies.
   5. The Customer may only resell the Reserved Goods in the ordinary course of business. He is not authorised to dispose of the Reserved Goods in any other way, in particular by pledging them or assigning them as security. By way of security, the Customer hereby assigns to us all claims arising from the resale of the Reserved Goods. The Customer is hereby authorised to collect the claim. If the Reserved Goods are sold by the Customer together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of the resale value of the Reserved Goods sold in each case. If the claim from the resale is placed by the Customer in a current account relationship with his customer, the recognised balance, which is assigned in the amount of the resale value of the Reserved Goods sold in each case, shall take its place after the current account claim has been balanced. In the case of the sale of goods in which we have co-ownership shares in accordance with Section 10.3, the assignment of the claim shall apply in the amount of the corresponding resale value of these co-ownership shares.
   6. We shall be entitled to revoke the authorisation to sell the Reserved Goods and the collection authorisation if the Customer defaults on payment or disposes of the Reserved Goods outside the ordinary course of business or if, after conclusion of the contract, a significant deterioration in the Customer’s financial circumstances becomes apparent which jeopardises a claim on our part. In the event of suspension of payments by the Customer or an application to open insolvency proceedings against the Customer’s assets, the authorisations to sell the Reserved Goods and the collection authorisation shall automatically lapse. In this case, we are also entitled, without prejudice to other claims, to prohibit the processing, combining or mixing of the Reserved Goods. In addition, we are entitled – just as in the case of a revocation of the collection authorisation – to demand that the Customer immediately informs us of the transferred claims and names the debtors, provides any information required to assert the claims, hands over the relevant documents and informs the debtors of the transfer.
   7. After the revocation or lapse of the authorisation to collect receivables, incoming, assigned outstanding receivables must be collected by the Customer immediately in a special account, whereby the payments must be clearly assignable to us.
   8. If the Reserved Goods are used by the Customer to fulfil a contract for work and materials, the Customer’s claim arising from the contract to produce a work or a service contract (“Dienstvertrag”) shall be assigned to us to the same extent as stipulated in Sections 10.3. and 10.5.
   9. In the event of seizure, confiscation or other dispositions or interventions by third parties, the Customer must draw attention to our ownership and inform us immediately.
   10. It is not necessary to withdraw from the contract to assert the retention of title. If we assert our rights of retention of title, this shall only be deemed a cancellation of the contract if we expressly declare this. Any repossession of the Reserved Goods shall always be for security purposes only; this alone shall not constitute a cancellation of the contract. The right of the Customer to possess the Reserved Goods shall expire if we demand the return of the Reserved Goods due to default of payment. The Customer hereby authorises us to enter his premises for this purpose, to take back the Reserved Goods and to sell them in the open market to offset them against the outstanding claim less any costs incurred.
   11. Insofar as the value of the security rights to which we are entitled exceeds the amount of the secured claims by more than 10%, we shall at the request of the Customer release a corresponding part of the security rights at our discretion.

10. Material Defects

    1. The Deliveries are in accordance with the contract if they comply with the contractually agreed specifications (“Specifications“) at the time of the transfer of risk (in the case of defects of title at the time of the transfer of ownership). If the Deliveries comply with the Specifications, they shall be free from material defects even if they do not comply with the other objective requirements or any samples or specimens.
    2. In the case of a purchase contract or a contract for work and materials, the Customer is obliged to carefully inspect the Deliveries immediately after delivery, insofar as this is feasible in the ordinary course of business. The Customer must notify us in writing of material defects without delay, i.e. recognisable material defects must be notified in writing without delay, but no later than five (5) days after delivery, hidden material defects must be notified in writing without delay, but no later than five (5) days after their discovery. Otherwise, the Deliveries shall be deemed to have been approved. However, our measurement results can only be objected to on the basis of official re-weighing.
    3. In the event of a material defect, we must first be given the opportunity to remedy the defect within a reasonable period of time. Subsequent performance shall be made at our discretion by repair or replacement, provided that the material defect already existed at the time of transfer of risk. In the case of a new delivery, we shall either take back the originally delivered goods at our expense or the Customer shall, at our request, return or dispose of the originally delivered goods at our expense, unless the return and/or disposal is associated with considerable inconvenience for the customer. Even in the case of seller’s recourse (“Verkäuferregress”), the Customer is obliged, in deviation from Section 445a para. 2 BGB, to give us the opportunity to remedy the defect within the period set by the Customer’s buyer. The setting of a deadline is only dispensable if the setting of a deadline in accordance with Section 445a para. 2 BGB is already dispensable in the relationship between the Customer and his buyer, so that the Customer cannot give us the opportunity for subsequent performance.
    4. Unless otherwise agreed, the place of subsequent performance shall be the original place of delivery.
    5. If the subsequent performance fails, the Customer is entitled – without prejudice to other rights – to withdraw from the contract or to reduce the remuneration under the statutory conditions. Any statutory rights of the Customer to remedy the defect itself shall remain unaffected.
    6. At our request, the Customer shall declare within a reasonable period of time whether he will withdraw from the contract due to a material defect or whether he will insist on delivery.
    7. Any rights or claims due to defects do not exist if and to the extent that the usability of the Delivery concerned is only insignificantly impaired, in the case of only insignificant deviations of the Deliveries from the agreed quality, in the case of natural wear and tear and damage arising after the transfer of risk as a result of incorrect assembly or commissioning by the Customer or third parties, unsuitable or improper use, incorrect or negligent handling, excessive strain, use of unsuitable operating materials or replacement materials, or which arise due to special external influences on the Delivery which we did not have to expect.
    8. The Customer shall bear the costs of determining the defect if there is no defect and the Customer has recognised or negligently failed to recognise this.
    9. Our obligation to pay compensation for damages or expenses shall be governed by Section 12.

11. Compensation for Damages and Reimbursement of Expenses

    1. Claims for damages and reimbursement of expenses by the Customer (“Claims for Damages“), irrespective of their legal basis, are excluded.
    2. The above exclusion of liability does not apply in the event of
       1. claims for reimbursement of expenses in accordance with Sections 439 para. 2, para. 3 and 445a para. 1 BGB;
       2. intent or gross negligence;
       3. liability under the Product Liability Act (Produkthaftungsgesetz – “ProdHaftG”);
       4. liability for culpable injury to life, limb or health;
       5. the assumption of a guarantee or due to defects that were fraudulently concealed (Section 444 BGB);
       6. liability for culpable breach of essential contractual obligations, i.e. obligations whose fulfilment is essential for the proper performance of the contract and on whose fulfilment the Customer regularly relies and may rely on. In the event of a breach of essential contractual obligations, our liability shall be limited to foreseeable damage that can typically be expected to occur, unless we are liable for intent or gross negligence, injury to life, limb or health, or under the Product Liability Act.
    3. Insofar as our liability is limited in accordance with this Section 12, this shall also apply to the corresponding personal liability of our employees, vicarious agents, executive bodies and legal representatives.
    4. A change in the burden of proof to the detriment of the Customer is not associated with the above provisions.
    5. In the event of damage caused by delay, Section 6 shall take precedence over this Section 12.

12. Statute of Limitations

    1. The limitation period for claims due to a material defect or defect of title (subsequent performance, compensation in lieu of or in addition to performance, claims for reimbursement of expenses) is one (1) year.

13. Notwithstanding the above, the statutory limitation period shall apply

    1. with regard to all claims of the Customer in the case of Section 438 para. 1 no. 1 BGB (rights in rem of third parties which entitle the customer to surrender the item), Sections 438 para. 1 no. 2 BGB (buildings and objects), Section 445b BGB (recourse claims in supplier recourse), Section 634a para. 1 no. 2 BGB (buildings) or in the case of fraudulent concealment of the defect by us; and
    2. in the event of claims for damages, additionally: in the event of injury to life, limb or health, in the event of claims under the Product Liability Act and in the event of grossly negligent or wilful breaches of duty.
    3. The suspension of expiry according to Section 445b para. 2 BGB ends at the latest five (5) years after the time at which we have delivered the goods to the Customer.
    4. Repairs or replacement Deliveries are always carried out by us as a gesture of goodwill and without recognising any legal obligation. An acknowledgement with the consequence of a new start of the limitation period only exists if we expressly declare it to the Customer. Except for an expressly declared acknowledgement, no new limitation period shall commence upon rectification or replacement delivery. The statutory provisions on suspension, recommencement and interruption shall remain unaffected.
    5. For other claims of the Customer, irrespective of the legal basis, which are not attributable to defects in the Deliveries, the regular limitation period shall be reduced to two (2) years from the start of the statutory limitation period. This shall not apply to claims for damages in accordance with Section 12.2.

14. Force Majeure

    1. If the fulfilment of a contract is impaired by force majeure (“Force Majeure“), i.e. circumstances for which the parties to the contract are not responsible and which could not have been foreseen at the time the contract was concluded with reasonable care, in particular due to partial or general mobilisation, war, civil war, warlike or war-like acts or conditions, imminent threat of war, state interventions or controls in the context of the war economy, monetary and trade policy measures or other sovereign measures, official or political arbitrary acts, riots, terrorism, natural disasters, accidents, industrial disputes, epidemics, pandemics, significant operational disruptions (e.g. fire, machinery or rolling mills, etc.), or other disruptions that could not have been foreseen. If we are unable to fulfil our contractual obligations in the event of significant operational disruptions (e.g. fire, machine or roller breakage, shortage of raw materials or energy), significant obstructions of transport routes or other unusual delays in transport, in each case of more than short-term duration, the contractual obligations of the parties shall be suspended and the deadlines and dates provided for the performance of the Deliveries shall be extended accordingly, irrespective of whether these circumstances occur at our premises, those of a supplier or subcontractor.
    2. The event of Force Majeure must be reported to the other party without delay. In such a case, the parties shall negotiate an appropriate adjustment to the contract (also taking into account the commercial content). If such an adjustment to the contract cannot be achieved, both parties shall be entitled to withdraw from or to terminate the contract, but no earlier than three (3) months after the start of the Force Majeure event. Statutory rights of withdrawal and termination or those regulated in these Terms remain unaffected.

15. Export Control

    1. The fulfilment of the contract by us is subject to the proviso that there are no obstacles to fulfilment due to national or international regulations of foreign trade law as well as no embargoes and/or other sanctions.
    2. When passing on Deliveries made by us to third parties in Germany and abroad, the Customer must comply with the applicable provisions of national and international (re-)export control law. A sale/transfer (directly or indirectly) to or for use in countries/regions against which an embargo results from the applicable regulations of (re-)export control law (in particular Germany, the EU and/or the U.S.A.) is not permitted unless prior written approval is given by us.
    3. If required for export control checks, the Customer shall provide us immediately upon request with all information on the final recipient, final destination and intended use of the deliveries made by us as well as any export control restrictions in this respect.
    4. The Customer shall indemnify us against all claims asserted against us by authorities or other third parties due to the customer’s non-compliance with the above obligations under export control law, unless the Customer is not responsible for them. This does not imply a reversal of the burden of proof.
    5. In the event of a breach by the Customer of the obligations set out in this Section 15, we are entitled either to withdraw from the contract or to terminate it. Statutory rights of termination remain unaffected by this.

16. Business Partner Code of Conduct

    1. The Customer is obliged to fully comply with all requirements of the Business Partner Code of Conduct of CREMER Holding GmbH & Co. KG (“BPCOC”) in full. The BPCOC is available at https://www.cremer.de/en/news/download-centre.html (under “Terms of Service”). We will also be happy to send you the BPCOC on request.

17. Confidentiality

    1. The Customer is obliged to treat all information, in particular know-how and trade secrets, which he obtains from us and which are labelled as confidential or where it is clear from the circumstances that they are confidential (“Confidential Information“), irrespective of whether they have been communicated in written, electronic, embodied or oral form, as confidential vis-à-vis third parties. In particular, the Customer is not authorised to disclose or make the Confidential Information accessible to third parties without our prior consent. The Confidential Information shall only be used for the purposes of the contract. Employees of the Customer and other persons who gain access to the Confidential Information in connection with the performance of the contract shall be obliged by the Customer to maintain confidentiality accordingly.
    2. The obligation in Section 16.1. shall not apply to information insofar as it
       1. was demonstrably already known to the Customer at the time of the conclusion of the contract or became known to the Customer from a third party thereafter, without violating a confidentiality agreement, statutory provisions or official orders,
       2. was already generally known at the time of conclusion of the contract or became generally known later, unless this is due to a breach of this contract,
       3. was developed independently by the Customer without access to our Confidential Information, or
       4. they must be disclosed due to legal obligations or by order of a court or authority.
    3. The obligations of this Section 16. shall survive the end of the contract and the business relationship, irrespective of the manner in which the contract or the business relationship is terminated.

18. General Provisions

    1. Legally relevant declarations and notifications made to us by the Customer after conclusion of the contract (e.g. setting of deadlines, reminders, cancellation notices) must be made in writing.
    2. Insofar as a written form requirement is stipulated in these Terms, compliance with text form within the meaning of Section 126b BGB (permanent data carrier such as fax, e-mail, letter) shall be sufficient in this respect.
    3. If individual provisions of the contract, including these Terms, are invalid, the remaining provisions shall remain valid.

19. Place of Jurisdiction and Applicable law

    1. All disputes arising out of or in connection with the contractual relationship shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by one arbitrator appointed in accordance with the said rules of the ICC. The arbitration shall be conducted in English. The place of arbitration shall be at our registered office (Germany).
    2. These Terms and the contractual relationship between us and the Customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

General Terms and Conditions for Deliveries and Services of Mineralmahlwerk Wesel GmbH

(Version: September 2024)

1. Scope of Application

   1. These General Terms and Conditions for Deliveries and Services (“Terms“) shall apply in business transactions with entrepreneurs within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”), legal entities under public law or special funds under public law (each referred to as “Customer“) for the current contract and as a framework agreement for all future contracts in ongoing business relationships with the Customer. All deliveries and services including ancillary and additional services (collectively “Deliveries“) shall be based on these Terms.
   2. Any and all conflicting terms and conditions or terms and conditions deviating from these Terms or from statutory provisions shall not apply unless we have expressly agreed to their validity in writing. This shall also apply if we have not expressly objected to them or if we have carried out Deliveries without reservation or accepted payments without reservation.

1. Conclusion of Contract

   1. Unless expressly stated otherwise in writing, our offers are subject to change and non-binding.
   2. We can accept orders and other contractual offers of the Customer within 14 calendar days after their submission. Orders are irrevocable until the expiry of this period. Our declarations (in particular order confirmations) relating to the conclusion of contracts must be made in writing. This requirement of the written form does not include informal post-contractual amendments and supplements. We shall also remain entitled to constitute the conclusion of a contract by executing our Deliveries without reservation or by invoicing Deliveries in whole or in part. Our silence shall not constitute any reliance on the conclusion of a contract.
   3. Our sales employees are not entitled to make verbal amendments and supplements that go beyond the content of the concluded written contract.
   4. If a letter of confirmation from the Customer deviates from our order confirmation or extends or restricts it, the Customer shall emphasise the deviations as such.

2. Scope of Deliveries

   1. The agreed components of the Deliveries are conclusively listed and specified in the order confirmation, including any attachments thereto.
   2. Drawings, illustrations, dimensions, weights, tests, test certificates, manufacturer’s declarations, other performance data, advice or information are only binding if and insofar as this is expressly agreed in writing. Unless expressly agreed in writing, we neither grant a guarantee of quality or durability nor do we assume any liability for a specific intended use or a specific suitability. The risk of suitability and use shall besides be borne by the Customer.
   3. Storage goods or raw goods shall only be insured against damage – even if they have been handed over to us for grinding by the Customer or a third party commissioned by him – at the express request of the Customer. This also applies to insurance of load against transport damage. The costs shall be borne by the Customer in each case.
   4. A transfer or granting of rights in connection with the Deliveries shall not take place unless expressly agreed otherwise in writing. This applies in particular to any work results, industrial property rights, applications for industrial property rights, inventions, know-how, any rights subject to copyright, as well as to all documents or data provided by us in physical or electronic form in connection with the Deliveries. Insofar as the Customer is granted rights in connection with the Deliveries, these are limited to the specific contractually agreed purpose.

3. Prices and Terms of Payment

   1. Unless expressly agreed otherwise in writing, the weight of the delivery items shall be decisive for their price. Any quantities, bundle numbers etc. stated in the contract and delivery documents are non-binding in this respect.
   2. Unless expressly agreed otherwise in writing, the prices are FCA (our factory) in accordance with the Incoterms 2020, excluding collection, packaging, preservation, insurance, laboratory services, unloading, freight, release, disposal and other ancillary costs, plus the applicable value added tax, if applicable. In the case of cross-border Deliveries, all customs duties, taxes, fees or other public charges incurred shall also be reimbursed to us by the Customer.
   3. Unless expressly agreed otherwise in writing, the agreed price shall not include any remuneration for waiting times and other delays for which we are not responsible, or for deliveries or services that deviate from or are in addition to the Deliveries. Any additional expenditure which we could not foresee due to special circumstances and for which we are not responsible, and which exceeds the expenditure normally to be expected, is also not compensated. Costs not included in the agreed price shall be invoiced separately.
   4. Unless expressly agreed otherwise in writing, our invoices are payable in euros without deduction within 14 calendar days of delivery and receipt of invoice by the Customer. The receipt of payment by us shall be decisive for the timeliness of payment. Bank charges and expenses shall be borne by the Customer.
   5. In the event that our claims are jeopardized by a significant deterioration in the creditworthiness of the Customer, which becomes apparent after conclusion of the contract, we are entitled to perform outstanding Deliveries only against advance payment or provision of an appropriate security. If the Customer fails to make an advance payment or provide adequate security within a reasonable period of time, we are entitled to withdraw from the contract. Our other rights shall remain unaffected.
   6. The Customer shall only be entitled to rights of set-off and retention against our claims insofar as counterclaims against us have been legally established or are undisputed, or the counterclaim originates from the same contractual relationship.
   7. If the costs for the manufacture and delivery of the respective delivery items concerned (e.g. raw material prices, energy, labour, packaging, transport or insurance costs) increase significantly between the time of conclusion of the contract and the agreed delivery date – not foreseeable for us and for which we are not responsible – we shall be entitled at our reasonable discretion (Section 315 BGB) to increase the prices appropriately, taking into account the change in costs and the justified interests of the Customer. As a rule, a significant increase in the costs for the manufacture and delivery of the delivery items concerned shall be deemed to exist if these have increased by more than 5% since the time of conclusion of the contract or after the last price adjustment up to the agreed delivery date.

4. Deliveries and Delivery Dates

   1. We deliver FCA (our factory) in accordance with Incoterms 2020, unless expressly agreed otherwise in writing.
   2. If expressly agreed in writing, we shall deliver the delivery items packaged as is customary in the trade (e.g. in big bags or sacks). Any packaging that goes beyond the transport purpose known to us or any other special protection, e.g. for longer-term storage of the delivery items, shall require an express written agreement.
   3. Partial, excess or short Deliveries are permissible insofar as they are reasonable for the Customer. The same applies to premature Deliveries.
   4. Delivery dates are only binding if this has been expressly agreed in writing with the Customer. Agreed delivery dates are also subject to the timely clarification of commercial and technical details (in particular the provision of the necessary information, documents and approvals by the Customer) and the timely and correct fulfilment of all obligations to cooperate by the Customer. Our delivery obligations are also subject to the proper and timely delivery by our suppliers.
   5. We are entitled to adjust the delivery dates at our reasonable discretion if the conditions specified in Section 5.4 are not met in good time.
   6. In the event of a delivery according to Section 5.1, the agreed delivery dates shall be deemed to have been met upon notification to the Customer that the delivery items are ready for dispatch. This shall also apply if the deliveries cannot be dispatched on time, unless we are responsible for this.
   7. If the Customer culpably breaches an obligation to cooperate, we shall be entitled, without prejudice to other claims, to demand compensation for the resulting damage (e.g. additional expenses).

5. Delay in Delivery

   1. In the event of a delay in delivery (“Lieferverzug”), our liability is limited as follows: The Customer’s claim for damages due to delay is limited to 0.5% of the net price of the delayed Delivery for each full week of delay, up to a maximum of 5% of the net price of the delayed Delivery. This limitation shall not apply in the event of liability due to intent or gross negligence or injury to life, limb or health.
   2. If the collection or dispatch of the Deliveries is delayed by more than four (4) weeks after notification of readiness for dispatch for a reason for which the Customer is responsible, we shall charge the Customer a storage fee from the end of this period in the amount of our current storage fee price list, which we will send to the Customer on request.
   3. The Customer may only withdraw from the contract due to delayed delivery in accordance with the statutory provisions if we are responsible for the delay or if the Customer cannot reasonably be expected to adhere to the contract due to the delay. Statutory rights of cancellation remain unaffected by this.
   4. At our request, the Customer must declare within a reasonable period of time whether he is cancelling the contract due to the delay in Delivery or whether he continues to insist on Delivery.
   5. The above provisions do not imply a change in the burden of proof.

6. Transfer of Risk and Acceptance

   1. The risk of accidental loss and accidental deterioration of the Deliveries – including partial Deliveries – shall pass to the Customer if and insofar we have made the Deliveries available for collection at the agreed place of delivery and have notified the Customer thereof, at the latest when and to the extent we have handed over the Deliveries to the carrier.
   2. Should we deliver the delivery items in deviation from clause 5.1, this shall be done – unless otherwise agreed – on the basis of DAP (place of delivery specified by us) in accordance with Incoterms 2020; however even in this case, the risk of accidental loss and accidental deterioration of the delivery items shall pass to the Customer when they are handed over to the forwarding agent or carrier, but at the latest when they leave our factory.
   3. In the case of a contract to produce a work (“Werkvertrag”), the risk of accidental loss or accidental deterioration shall pass to the Customer as soon as the produced work is under the control of the Customer, but at the latest upon the respective (partial) acceptance.
   4. If acceptance is required by law or has been agreed, the Customer must carry out acceptance within two (2) weeks of our notification of readiness for acceptance. If this is not done or not done in full, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place when the Delivery is put into use. The Customer is not entitled to refuse acceptance due to minor defects.
   5. If Deliveries are delayed for reasons for which the Customer are responsible, the risk of accidental loss and accidental deterioration of the Deliveries shall pass to the Customer at the time at which it would have passed to the Customer without the aforementioned circumstances. In the event of default of acceptance (“Annahmeverzug”) by the Customer, the risk shall pass to the Purchaser at the time of default of acceptance.

7. Quality, Dimensions and Weights

   1. Quality, dimensions and weights shall be determined in accordance with the DIN/EN standards applicable at the time of conclusion of the contract or, in the absence of such standards, in accordance with commercial practice. Customary deviations in the quality, dimensions and weights of the Deliveries shall not, however, entitle the Customer to make complaints or claims for defects, unless otherwise expressly agreed in writing.
   2. The weights of the delivery items shall be determined on our calibrated scales. Proof of weight shall be provided by submitting the weighing record or other suitable documentation. If individual weighing does not normally take place, the total weight of the Delivery shall apply. Differences compared to the calculated individual weights shall be distributed proportionally among these. Bags are weighed gross for net. The weighing costs shall be borne by the Customer. Our measurement results can only be objected to on the basis of official re-weighing.
   3. Customary abrasion of balls and armouring or of the grinding media and linings otherwise used shall not be considered as contamination and shall not entitle to complaints about the delivery items and claims for defects.

8. Contract Grinding

   1. If grinding of regrind is agreed which is not purchased from us (“Contract Grinding“), the Customer must deliver the regrind to our plant in good time and in the agreed quantity at his own expense.
   2. The Customer is obliged to inform us of all safety-relevant characteristics of the regrind (“Mahlgut”) and the current safety information in good time before the Contract Grinding is carried out. If no production specifications have been agreed with the Customer, we shall carry out the Contract Grinding in accordance with our production specifications at our reasonable discretion.
   3. The regrind must be of the agreed quality upon delivery to us and must be free of defects (in particular free of foreign bodies, metal inclusions and other impurities) and suitable for grinding in our systems. We reserve the right to claim additional costs if the regrind is not delivered in accordance with the contract.
   4. Unless expressly agreed otherwise, the price for Contract Grinding includes the costs from receipt of the raw materials free tipped in our factory to free lorry loading. Storage costs are charged separately. If the regrind is received in non-tippable lorries, unloading costs and the costs of disposing of the packaging will also be charged separately.
   5. In the case of regrind delivered by the Customer or a third party commissioned by the Customer, no right to the Delivery of corresponding quantities of finished goods can be derived from the delivered weight. In addition to the customary drying loss, the Customer must expect the customary grinding loss. The price for Contract Grinding shall be determined by the weight of the regrind before Contract Grinding and not by the weight of the finished product.
   6. All scrap and mineral residues resulting from Contract Grinding shall be disposed of by us at the Customer’s expense, unless expressly agreed otherwise.
   7. The Customer is obliged to inspect the Deliveries for their conformity with the contract at the latest before processing or further despatch. Deliveries destined for foreign countries must be inspected accordingly by the Customer before loading ex works. Defects must be reported immediately after their discovery. Otherwise, the Deliveries shall be deemed to have been approved. For purchase contracts (“Kaufverträge”) and contracts for work and materials (“Werklieferungsverträge”), Section 11.2 shall apply exclusively instead of Section 9.7.
   8. To secure our claims arising from the respective contract for Contract Grinding with the Customer, we shall be entitled to a right of lien from the handover of the customer’s relevant regrind to the Customer. The right of lien can also be asserted for claims arising from earlier Deliveries, insofar as they are connected with the respective contract for Contract Grinding. The contractual lien shall only apply to other claims if they are undisputed.
   9. Unless expressly agreed otherwise, we shall store the regrind free of charge for the Customer for three (3) months. After expiry of this period, we are entitled to charge the Customer storage costs for the further storage of the regrind in accordance with our current storage fee price list, which we will send to the Customer on request.
   10. The regrind delivered to us by the Customer for Contract Grinding shall be insured by the Customer at his own expense against theft, breakage, fire, water and other risks at replacement value – also during its storage and Contract Grinding at our plant.

9. Retention of Title

   1. We retain title to all delivery items (“Reserved Goods“) until fulfilment of all our claims against the Customer arising from the respective contract.
   2. The Customer is obliged to cooperate in all measures which are necessary to protect our retention of title; in particular, the Customer authorises us upon conclusion of the contract to make any necessary entry or priority notice of our retention of title in public registers at the Customer’s expense and to fulfil all other formalities required under the applicable property law. Insofar as the legal system applicable at the place of performance does not recognise our retention of title, the Customer undertakes to cooperate in the creation of a comparable security interest in Reserved Goods.
   3. The processing or transformation of the Reserved Goods by the Customer shall always be carried out free of charge for us as the manufacturer within the meaning of Section 950 BGB. The Customer shall store the new item for us with the due care of a prudent businessman. The new items shall be deemed to be Reserved Goods. If Customer processes, combines or mixes the Reserved Goods with other items, we are entitled to co-ownership of the new item in the ratio of the invoice value of the Reserved Goods to the invoice value of the other goods used. If our retention of title expires due to combining or mixing, the Customer hereby transfers to us the ownership rights to which it is entitled to the new stock or the new item to the extent of the invoice value of the Reserved Goods and shall store them for us free of charge. Our (co-)ownership rights arising hereunder shall be deemed to be Reserved Goods.
   4. The Customer is obliged to store the Reserved Goods separately from other items belonging to the Customer or third parties, to mark them as our ownership, to treat them with care, to maintain them at his own expense for the duration of the retention of title and to insure them in our favour against theft, breakage, fire, water and other risks at replacement value. The Customer shall carry out any necessary maintenance and inspection work on the Reserved Goods at his own expense and risk. The Customer hereby assigns to us all claims for compensation arising from such insurance policies.
   5. The Customer may only resell the Reserved Goods in the ordinary course of business. He is not authorised to dispose of the Reserved Goods in any other way, in particular by pledging them or assigning them as security. By way of security, the Customer hereby assigns to us all claims arising from the resale of the Reserved Goods. The Customer is hereby authorised to collect the claim. If the Reserved Goods are sold by the Customer together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of the resale value of the Reserved Goods sold in each case. If the claim from the resale is placed by the Customer in a current account relationship with his customer, the recognised balance, which is assigned in the amount of the resale value of the Reserved Goods sold in each case, shall take its place after the current account claim has been balanced. In the case of the sale of goods in which we have co-ownership shares in accordance with Section 10.3, the assignment of the claim shall apply in the amount of the corresponding resale value of these co-ownership shares.
   6. We shall be entitled to revoke the authorisation to sell the Reserved Goods and the collection authorisation if the Customer defaults on payment or disposes of the Reserved Goods outside the ordinary course of business or if, after conclusion of the contract, a significant deterioration in the Customer’s financial circumstances becomes apparent which jeopardises a claim on our part. In the event of suspension of payments by the Customer or an application to open insolvency proceedings against the Customer’s assets, the authorisations to sell the Reserved Goods and the collection authorisation shall automatically lapse. In this case, we are also entitled, without prejudice to other claims, to prohibit the processing, combining or mixing of the Reserved Goods. In addition, we are entitled – just as in the case of a revocation of the collection authorisation – to demand that the Customer immediately informs us of the transferred claims and names the debtors, provides any information required to assert the claims, hands over the relevant documents and informs the debtors of the transfer.
   7. After the revocation or lapse of the authorisation to collect receivables, incoming, assigned outstanding receivables must be collected by the Customer immediately in a special account, whereby the payments must be clearly assignable to us.
   8. If the Reserved Goods are used by the Customer to fulfil a contract for work and materials, the Customer’s claim arising from the contract to produce a work or a service contract (“Dienstvertrag”) shall be assigned to us to the same extent as stipulated in Sections 10.3. and 10.5.
   9. In the event of seizure, confiscation or other dispositions or interventions by third parties, the Customer must draw attention to our ownership and inform us immediately.
   10. It is not necessary to withdraw from the contract to assert the retention of title. If we assert our rights of retention of title, this shall only be deemed a cancellation of the contract if we expressly declare this. Any repossession of the Reserved Goods shall always be for security purposes only; this alone shall not constitute a cancellation of the contract. The right of the Customer to possess the Reserved Goods shall expire if we demand the return of the Reserved Goods due to default of payment. The Customer hereby authorises us to enter his premises for this purpose, to take back the Reserved Goods and to sell them in the open market to offset them against the outstanding claim less any costs incurred.
   11. Insofar as the value of the security rights to which we are entitled exceeds the amount of the secured claims by more than 10%, we shall at the request of the Customer release a corresponding part of the security rights at our discretion.

10. Material Defects

    1. The Deliveries are in accordance with the contract if they comply with the contractually agreed specifications (“Specifications“) at the time of the transfer of risk (in the case of defects of title at the time of the transfer of ownership). If the Deliveries comply with the Specifications, they shall be free from material defects even if they do not comply with the other objective requirements or any samples or specimens.
    2. In the case of a purchase contract or a contract for work and materials, the Customer is obliged to carefully inspect the Deliveries immediately after delivery, insofar as this is feasible in the ordinary course of business. The Customer must notify us in writing of material defects without delay, i.e. recognisable material defects must be notified in writing without delay, but no later than five (5) days after delivery, hidden material defects must be notified in writing without delay, but no later than five (5) days after their discovery. Otherwise, the Deliveries shall be deemed to have been approved. However, our measurement results can only be objected to on the basis of official re-weighing.
    3. In the event of a material defect, we must first be given the opportunity to remedy the defect within a reasonable period of time. Subsequent performance shall be made at our discretion by repair or replacement, provided that the material defect already existed at the time of transfer of risk. In the case of a new delivery, we shall either take back the originally delivered goods at our expense or the Customer shall, at our request, return or dispose of the originally delivered goods at our expense, unless the return and/or disposal is associated with considerable inconvenience for the customer. Even in the case of seller’s recourse (“Verkäuferregress”), the Customer is obliged, in deviation from Section 445a para. 2 BGB, to give us the opportunity to remedy the defect within the period set by the Customer’s buyer. The setting of a deadline is only dispensable if the setting of a deadline in accordance with Section 445a para. 2 BGB is already dispensable in the relationship between the Customer and his buyer, so that the Customer cannot give us the opportunity for subsequent performance.
    4. Unless otherwise agreed, the place of subsequent performance shall be the original place of delivery.
    5. If the subsequent performance fails, the Customer is entitled – without prejudice to other rights – to withdraw from the contract or to reduce the remuneration under the statutory conditions. Any statutory rights of the Customer to remedy the defect itself shall remain unaffected.
    6. At our request, the Customer shall declare within a reasonable period of time whether he will withdraw from the contract due to a material defect or whether he will insist on delivery.
    7. Any rights or claims due to defects do not exist if and to the extent that the usability of the Delivery concerned is only insignificantly impaired, in the case of only insignificant deviations of the Deliveries from the agreed quality, in the case of natural wear and tear and damage arising after the transfer of risk as a result of incorrect assembly or commissioning by the Customer or third parties, unsuitable or improper use, incorrect or negligent handling, excessive strain, use of unsuitable operating materials or replacement materials, or which arise due to special external influences on the Delivery which we did not have to expect.
    8. The Customer shall bear the costs of determining the defect if there is no defect and the Customer has recognised or negligently failed to recognise this.
    9. Our obligation to pay compensation for damages or expenses shall be governed by Section 12.

11. Compensation for Damages and Reimbursement of Expenses

    1. Claims for damages and reimbursement of expenses by the Customer (“Claims for Damages“), irrespective of their legal basis, are excluded.
    2. The above exclusion of liability does not apply in the event of
       1. claims for reimbursement of expenses in accordance with Sections 439 para. 2, para. 3 and 445a para. 1 BGB;
       2. intent or gross negligence;
       3. liability under the Product Liability Act (Produkthaftungsgesetz – “ProdHaftG”);
       4. liability for culpable injury to life, limb or health;
       5. the assumption of a guarantee or due to defects that were fraudulently concealed (Section 444 BGB);
       6. liability for culpable breach of essential contractual obligations, i.e. obligations whose fulfilment is essential for the proper performance of the contract and on whose fulfilment the Customer regularly relies and may rely on. In the event of a breach of essential contractual obligations, our liability shall be limited to foreseeable damage that can typically be expected to occur, unless we are liable for intent or gross negligence, injury to life, limb or health, or under the Product Liability Act.
    3. Insofar as our liability is limited in accordance with this Section 12, this shall also apply to the corresponding personal liability of our employees, vicarious agents, executive bodies and legal representatives.
    4. A change in the burden of proof to the detriment of the Customer is not associated with the above provisions.
    5. In the event of damage caused by delay, Section 6 shall take precedence over this Section 12.

12. Statute of Limitations

    1. The limitation period for claims due to a material defect or defect of title (subsequent performance, compensation in lieu of or in addition to performance, claims for reimbursement of expenses) is one (1) year.

13. Notwithstanding the above, the statutory limitation period shall apply

    1. with regard to all claims of the Customer in the case of Section 438 para. 1 no. 1 BGB (rights in rem of third parties which entitle the customer to surrender the item), Sections 438 para. 1 no. 2 BGB (buildings and objects), Section 445b BGB (recourse claims in supplier recourse), Section 634a para. 1 no. 2 BGB (buildings) or in the case of fraudulent concealment of the defect by us; and
    2. in the event of claims for damages, additionally: in the event of injury to life, limb or health, in the event of claims under the Product Liability Act and in the event of grossly negligent or wilful breaches of duty.
    3. The suspension of expiry according to Section 445b para. 2 BGB ends at the latest five (5) years after the time at which we have delivered the goods to the Customer.
    4. Repairs or replacement Deliveries are always carried out by us as a gesture of goodwill and without recognising any legal obligation. An acknowledgement with the consequence of a new start of the limitation period only exists if we expressly declare it to the Customer. Except for an expressly declared acknowledgement, no new limitation period shall commence upon rectification or replacement delivery. The statutory provisions on suspension, recommencement and interruption shall remain unaffected.
    5. For other claims of the Customer, irrespective of the legal basis, which are not attributable to defects in the Deliveries, the regular limitation period shall be reduced to two (2) years from the start of the statutory limitation period. This shall not apply to claims for damages in accordance with Section 12.2.

14. Force Majeure

    1. If the fulfilment of a contract is impaired by force majeure (“Force Majeure“), i.e. circumstances for which the parties to the contract are not responsible and which could not have been foreseen at the time the contract was concluded with reasonable care, in particular due to partial or general mobilisation, war, civil war, warlike or war-like acts or conditions, imminent threat of war, state interventions or controls in the context of the war economy, monetary and trade policy measures or other sovereign measures, official or political arbitrary acts, riots, terrorism, natural disasters, accidents, industrial disputes, epidemics, pandemics, significant operational disruptions (e.g. fire, machinery or rolling mills, etc.), or other disruptions that could not have been foreseen. If we are unable to fulfil our contractual obligations in the event of significant operational disruptions (e.g. fire, machine or roller breakage, shortage of raw materials or energy), significant obstructions of transport routes or other unusual delays in transport, in each case of more than short-term duration, the contractual obligations of the parties shall be suspended and the deadlines and dates provided for the performance of the Deliveries shall be extended accordingly, irrespective of whether these circumstances occur at our premises, those of a supplier or subcontractor.
    2. The event of Force Majeure must be reported to the other party without delay. In such a case, the parties shall negotiate an appropriate adjustment to the contract (also taking into account the commercial content). If such an adjustment to the contract cannot be achieved, both parties shall be entitled to withdraw from or to terminate the contract, but no earlier than three (3) months after the start of the Force Majeure event. Statutory rights of withdrawal and termination or those regulated in these Terms remain unaffected.

15. Export Control

    1. The fulfilment of the contract by us is subject to the proviso that there are no obstacles to fulfilment due to national or international regulations of foreign trade law as well as no embargoes and/or other sanctions.
    2. When passing on Deliveries made by us to third parties in Germany and abroad, the Customer must comply with the applicable provisions of national and international (re-)export control law. A sale/transfer (directly or indirectly) to or for use in countries/regions against which an embargo results from the applicable regulations of (re-)export control law (in particular Germany, the EU and/or the U.S.A.) is not permitted unless prior written approval is given by us.
    3. If required for export control checks, the Customer shall provide us immediately upon request with all information on the final recipient, final destination and intended use of the deliveries made by us as well as any export control restrictions in this respect.
    4. The Customer shall indemnify us against all claims asserted against us by authorities or other third parties due to the customer’s non-compliance with the above obligations under export control law, unless the Customer is not responsible for them. This does not imply a reversal of the burden of proof.
    5. In the event of a breach by the Customer of the obligations set out in this Section 15, we are entitled either to withdraw from the contract or to terminate it. Statutory rights of termination remain unaffected by this.

16. Business Partner Code of Conduct

    1. The Customer is obliged to fully comply with all requirements of the Business Partner Code of Conduct of CREMER Holding GmbH & Co. KG (“BPCOC”) in full. The BPCOC is available at https://www.cremer.de/en/news/download-centre.html (under “Terms of Service”). We will also be happy to send you the BPCOC on request.

17. Confidentiality

    1. The Customer is obliged to treat all information, in particular know-how and trade secrets, which he obtains from us and which are labelled as confidential or where it is clear from the circumstances that they are confidential (“Confidential Information“), irrespective of whether they have been communicated in written, electronic, embodied or oral form, as confidential vis-à-vis third parties. In particular, the Customer is not authorised to disclose or make the Confidential Information accessible to third parties without our prior consent. The Confidential Information shall only be used for the purposes of the contract. Employees of the Customer and other persons who gain access to the Confidential Information in connection with the performance of the contract shall be obliged by the Customer to maintain confidentiality accordingly.
    2. The obligation in Section 16.1. shall not apply to information insofar as it
       1. was demonstrably already known to the Customer at the time of the conclusion of the contract or became known to the Customer from a third party thereafter, without violating a confidentiality agreement, statutory provisions or official orders,
       2. was already generally known at the time of conclusion of the contract or became generally known later, unless this is due to a breach of this contract,
       3. was developed independently by the Customer without access to our Confidential Information, or
       4. they must be disclosed due to legal obligations or by order of a court or authority.
    3. The obligations of this Section 16. shall survive the end of the contract and the business relationship, irrespective of the manner in which the contract or the business relationship is terminated.

18. General Provisions

    1. Legally relevant declarations and notifications made to us by the Customer after conclusion of the contract (e.g. setting of deadlines, reminders, cancellation notices) must be made in writing.
    2. Insofar as a written form requirement is stipulated in these Terms, compliance with text form within the meaning of Section 126b BGB (permanent data carrier such as fax, e-mail, letter) shall be sufficient in this respect.
    3. If individual provisions of the contract, including these Terms, are invalid, the remaining provisions shall remain valid.

19. Place of Jurisdiction and Applicable law

    1. All disputes arising out of or in connection with the contractual relationship shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) by one arbitrator appointed in accordance with the said rules of the ICC. The arbitration shall be conducted in English. The place of arbitration shall be at our registered office (Germany).
    2. These Terms and the contractual relationship between us and the Customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Terms & Conditions, CREMER Erzkontor N.A. Inc., USA

November 18, 2021

STANDARD TERMS AND CONDITIONS OF PURCHASE

1. SCOPE OF WORK AND ACCEPTANCE

   These Standard Terms and Conditions of Purchase and the written purchase order that accompanies, attaches, or incorporates them (the “Purchase Order” and collectively, the “Contract”), constitute the sole and exclusive terms on which Buyer agrees to be bound. The term Buyer includes CREMER ERZKONTOR N.A. Inc or any of its affiliates or subsidiaries which execute a Purchase Order. The term “Supplier” means the person, firm or company to whom the Purchase Order is addressed. In exchange for the Supplier’s compensation listed on the Purchase Order, Supplier agrees to supply the “Materials” which means all the goods and/or services to be supplied by Supplier under the Purchase Order. This Contract will become legally enforceable on the earlier of delivery of a signed acknowledgment, commencement of performance or delivery according to schedule of all or any portion of the Materials covered under this Contract, by Supplier. Any acceptance of this Contract is limited to acceptance of the express terms of the offer contained.

2. SALE OF MATERIALS

   Supplier agrees to sell, transfer and deliver the Materials to Buyer for the purchase price set forth in the Purchase Order, subject to all of the covenants, terms and conditions hereof. Buyer agrees to purchase the Materials, subject to all of the covenants, terms and conditions hereof, and to pay Supplier the purchase price set forth in the Order. Typographical and other clerical errors in the Order are subject to correction. Buyer reserves the right at any time to modify the Purchase Order upon notice to Supplier. Upon such notice, Buyer and Supplier shall negotiate an equitable adjustment in price and/or time of performance. Buyer shall have the right to stop all or part of the work under the Order or cancel any future delivery of any Materials upon notice to Supplier. Supplier agrees to obtain from Buyer a purchase order number for any and all purchase orders of goods and/or services. Supplier further agrees it will clearly reference the purchase order number on the applicable invoice(s). Supplier acknowledges that any invoice submitted to Buyer that does not clearly reference Buyer’s corresponding purchase order number may be considered invalid by Buyer and may result in delayed payment.

3. PURCHASE PRICE AND TERMS OF PAYMENT

   Supplier warrants that the prices set forth in this Contract are complete and that no additional charge of any type will be added without Buyer’s prior express written consent. Unless otherwise specified on the Order, payment of the purchase price shall be due forty-five (45) days after the later of Buyer’s receipt of Supplier’s correct invoice for such shipment or the date on which the Materials are received by Buyer. Supplier agrees that it will take no adverse action against Buyer for any invoices not paid resulting from Supplier’s failure to obtain or clearly reference purchase order numbers on the applicable invoices or accurately invoice Buyer. Unless otherwise noted on the Purchase Order, Supplier shall be responsible for all shipping and insurance costs, including without limitation, packing, crating, cartage and freight costs. Buyer may set off any amount owing at any time from Supplier to Buyer or any of its affiliates against any amount payable at any time by Buyer.

4. WARRANTIES FOR MATERIALS

   Supplier hereby warrants to Buyer that, in addition to any and all express and implied warranties provided under the Uniform Commercial Code, the Materials: (i) shall be provided in a competent, professional manner and in accordance with the highest standards and best practices of Supplier’s industry; (ii) shall be free from defects in materials and workmanship, and shall be merchantable and fit for their particular purpose and Supplier acknowledges that Buyer is relying on the Supplier’s skill or judgment to furnish suitable Materials; (iii) shall conform to and perform in accordance with all specifications, drawings, samples and other requirements referred to in the Purchase Order and provided by Supplier; (iv) when shipped shall be free from all liens, security interests and encumbrances of any type or any actual or claimed patent, copyright or trademark infringement or other colorable claims; (v) will not violate or in any way infringe upon the rights of third parties; and (vi) shall be performed or manufactured, produced, labeled, furnished and delivered to Buyer in full and complete compliance with all applicable federal, state and local laws and regulations. In addition to remedies otherwise available to Buyer, if Supplier is in breach of the warranties set out in this paragraph, Supplier will, at the election of Buyer (i) repair of the nonconforming Materials, (ii) replace or reperform nonconforming Materials with conforming Materials at the Buyer’s designated delivery point, or (iii) refund of that portion of the purchase price represented by the nonconforming Materials.

5. DELIVERY OF MATERIALS

   Supplier shall furnish, at Supplier’s expense, all labor, materials, equipment, transportation, facilities and other items that are necessary to meet the Purchase Order requirements. Time is of the essence in Supplier’s performance. Supplier must immediately notify Buyer whenever Supplier has knowledge of an actual or potential delay to the timely performance of the Order. In the event of Supplier’s refusal or failure to meet the delivery date(s) specified in the Purchase Order, Buyer may, without limiting its other rights and remedies, direct expedited routing and charge excess costs incurred thereby to Supplier, or cancel all or part of the Purchase Order. 6. COMPLIANCE WITH BUYER’S RULES; SAFETY: Supplier, its employees, subcontractors, and all other persons or entities acting on behalf of Supplier agree to abide by Buyer’s rules and reasonable requests while on premises owned, leased, or otherwise controlled by Buyer. Buyer reserves the right to bar from such premises Supplier, any employee, subcontractor or any other person or entity acting on behalf of Supplier for any cause that Buyer deems reasonable. Supplier will provide all safeguards and precautions necessary in connection with the provision of Materials to prevent the occurrence of any accident, injury, death, loss, or damage to any person or property, and Supplier will be solely responsible for any such occurrences. Supplier warrants that all Materials delivered hereunder will be in compliance with all Buyer requirements concerning safety, performance and otherwise, including, without limitation, any work or services related thereto performed on premises controlled by Buyer. Supplier agrees to immediately notify Buyer of any actual or possible safety or quality problems attributable to the Materials delivered hereunder.

6. LIENS

   Supplier guarantees that no lien, encumbrance or security interest will be filed by Supplier or anyone acting on behalf of, or claiming under or through Supplier, against Buyer, Buyer’s property, or the Materials furnished under this Contract.

7. REJECTION AND REVOCATION OF ACCEPTANCE

   Buyer shall not be bound to reimburse Supplier for any Materials that, in Buyer’s judgment, fail to conform to Supplier’s obligations under the Contract. Buyer has the right, before payment or acceptance of Materials under this Contract, to inspect the Materials at any reasonable place and time and in any reasonable manner. Neither the inspection, testing, payment or auditing of any Materials, nor the failure to do so, before delivery to Buyer constitute acceptance of any Materials, or relieve Supplier from exclusive responsibility of furnishing Materials in strict conformance with Buyer’s specification and instructions. If, in Buyer’s judgment, the Materials fail in any respect to conform to the Contract, Buyer may (a) reject the whole; (b) accept the whole; or (c) accept any commercial unit or units and reject the rest. Supplier agrees that any notification of nonconformity by Buyer, in whatever form, suffices to inform the Supplier that the transaction is claimed to involve a breach, and that Supplier will be responsible for any losses resulting from the nonconformity. In an appropriate case, Buyer may revoke its acceptance of Materials. Supplier agrees that Buyer’s acceptance of the Materials is reasonably induced by the Supplier’s assurances of their quality and conformity to the terms of the Contract.

8. AUDITS AND INSPECTIONS

   Buyer has the right to examine and audit, during normal business hours and upon reasonable notice, any and all records, data, invoices and documents that may contain information relating to Supplier’s obligations under this Contract. Such records will be kept by Supplier for a period of at least four (4) years after the expiration, cancellation or termination of this Contract, or for such longer periods as may be required by law. In addition, Buyer may inspect or test at any reasonable time and place all Materials prior to delivery. Supplier agrees to provide reasonable assistance for such audits, inspections, and tests.

9. TAXES

   Supplier will bear and pay all applicable taxes of the United States or any state or any foreign government including political subdivisions of any of them, which are based on or measured by net income, gross income or gross receipts including any withholding taxes levied against Supplier for the privilege of doing business in a jurisdiction. If Supplier is required by law to collect sales and use tax (including any gross receipts tax imposed similar to a sales and use tax) from Buyer on behalf of any taxing jurisdiction, Supplier will provide to Buyer invoices which separately state and clearly indicate the amount of tax and Buyer will remit any such tax to Supplier. Supplier will have the responsibility of complying with all applicable foreign, national, state or local laws regarding value added tax and sales and use tax or substitutes therefor including registration, collection of taxes and the filing of returns where applicable. Notwithstanding whether Supplier must collect sales and use tax from Buyer, Supplier will state on every invoice the taxing jurisdiction (e.g. country, state and local jurisdiction) in which Materials were provided. If applicable, in lieu of payment for any sales and use tax, Supplier will accept a properly executed exemption or direct pay certificate from Buyer. The Page 2 of 3 Services determination of whether an exemption or direct pay certificate will be submitted to Supplier in lieu of payment for any sales and use tax will be made by Buyer on a location by location basis. With the exception of sales and use tax as described above, all other taxes, however denominated or measured, imposed upon the Supplier, or the price or compensation under this Contract, or upon the Materials provided hereunder, will be the responsibility and liability of Supplier.

10. CONFIDENTIALITY

    During the term of this Contract and for five years after its cancellation, termination or expiration, Supplier shall not make use of Buyer’s Confidential Information (as hereinafter defined) for purposes other than the fulfillment of the obligations under this Contract, or disclose to any person or entity, other than those of its employees who have a need to know, any Confidential Information, whether written or oral, which the Supplier obtains from Buyer or otherwise discovers in the performance of this Contract. “Confidential Information,” as used in this Contract, will mean all information relating to Buyer’s business which is not generally available to the public. Confidential Information includes information that Supplier possesses that predates this Contract. The foregoing provisions of this paragraph shall not apply to any information that is: (a) rightfully known to Supplier prior to disclosure by Buyer; or (b) rightfully obtained by Supplier from any third party; or (c) made available by Buyer to the public without restrictions; or (d) disclosed by Supplier with prior written permission of Buyer; or (e) independently developed or learned by Supplier through legitimate means; or (f) disclosed by Buyer to a third party without a duty of confidentiality on the third party; or (g) disclosed pursuant to any applicable laws, regulations, or order of a court of competent jurisdiction. Supplier will provide reasonable prior written notice to Buyer if it is required to disclose any of Buyer’s Confidential Information under operation of law. Buyer expressly reserves the right to disclose any of the terms of this Contract, including but not limited to pricing, to third parties.

11. LIMITATION ON USE OF PAYMENT

    Supplier shall not offer or use, directly or indirectly, any money, property or anything of value received by Supplier under or pursuant to this Contract to influence improperly or unlawfully any decision, judgment, action or inaction of: any official, employee or representative of any government or agency or instrumentality thereof, or of any government owned or partially government owned entity, or any other person or entity, in connection with or relating to the subject matter of this Contract or any supplement or amendment hereto. No payment shall be made nor shall any transaction be entered into in connection with this Contract that is illegal, improper or intended to unduly or improperly influence any third party, including without limitation, by means of extortion, kickback or bribery. If Supplier breaches the terms of this provision, Buyer may immediately terminate this Contract without any liability.

12. INTELLECTUAL PROPERTY

    In the event the Contract relates to consulting services, the Supplier shall be considered a consultant and every work or idea created or acquired by or on behalf of the Supplier for Buyer (past and future) shall be considered a “work made for hire” on behalf of the Buyer. It is the intent of the parties that Buyer shall have unrestricted ownership in and to all such works and to any derivative works, without further compensation of any kind to the Supplier. To the extent that the law would fail to automatically vest in Buyer the full unrestricted ownership of all such works under “work for hire” treatment or similar concepts, the Supplier hereby assigns to Buyer the copyright and any and all other rights in and to every such work including any derivatives, and the Supplier waives any claim of moral right that it may have in or in connection with such work. Supplier may not use Buyer’s name and/or logo in any manner, other than as may be identified in this Contract, without first obtaining written permission from Buyer.

13. INDEMNIFICATION

    Supplier will indemnify, defend, and hold harmless Buyer, its directors, officers, employees, agents, representatives, successors, assigns, and customers (“Indemnitees”) from and against all liabilities, expenses, suits, claims, actions, demands, judgments, settlements, costs, losses, fines and penalties, including but not limited to attorney fees, costs and expenses of litigation (“Claims”), that arise out of or are related to: (i) the Materials, defective Materials or their manufacture, delivery, use or misuse; (ii) the performance of this Contract; or (iii) breach of any of the provisions of this Contract, whether Claims are caused in whole or in part by any negligence or any act or omission of Supplier, its directors, officers, employees, subcontractors, agents, representatives, successors, or assigns, and regardless of whether or not such negligence or acts or omissions were caused in part by the Indemnitees. Supplier hereby expressly agrees to waive any provision of any workers’ compensation act, disability or other employee benefits laws, or any similar laws granting Supplier rights and immunities as an employer, and expressly agrees to indemnify, defend, and hold harmless the Indemnitees against all Claims brought by the workers, servants, agents, or employees of Supplier encompassed by this Indemnification paragraph 14. Among other such laws, Supplier expressly waives application of Section 303(b) of the Pennsylvania Workers’ Compensation Act, and Section 35, Article II of the Ohio Constitution and Ohio Revised Code Section 4123.74, as each may be amended or revised from time to time.

14. INSURANCE

    Supplier agrees: (i) to maintain in full force and effect casualty, property, and other lines of insurance of the types, on the terms and in the amounts commensurate with its business and risks associated therewith (“Insurance”) and to comply with applicable workers compensation insurance laws regarding insurance or qualification as a self-insurer; (ii) to the extent permitted by law, to waive rights of subrogation and contribution against Buyer, including Buyer as an additional insured, under policies of Insurance; (iii) to ensure that Buyer is made an additional insured on policies of Insurance under terms of coverage customary to the risk of loss to which Buyer is exposed and that the limits of Insurance to which Buyer is entitled as an additional insured are no less than the amount of total limits of Insurance applicable to Supplier under all of the policies of Insurance; (iv) to ensure that the policies of Insurance are stated to be specifically primary to any of Buyer’s insurance policies, which policies shall be, in all respects, excess to Supplier’s policies of Insurance; (v) to be solely responsible for any deductibles, self-insured retentions, or other form of self-insurance under the policies of Insurance; (vi) upon Buyer’s request, to timely provide written certification, reasonably acceptable to Buyer, certifying the material terms of the policies of Insurance.

15. FORCE MAJEURE

    Neither party will be in default for any delay or failure to perform its obligations under this Contract if caused by an extraordinary, unforeseen supervening circumstance not within the contemplation of the parties at the time of contracting and beyond the reasonable control of the party affected. The parties agree that there is no agreed source of supply for Supplier to fulfill its obligations under this Contract. The party affected by an event under this paragraph shall furnish prompt written notice of any delays or non-performances (including its anticipated duration) after becoming aware that it has occurred or likely will occur. If Supplier is unable to perform for any reason, Buyer may obtain the Services and purchase the Goods from other sources and reduce its obligations owing to Supplier accordingly without liability to Supplier. Within three business days after written request by the other party, the non-performing party will provide adequate assurances that the non-performance will not exceed 30 days. If the non-performing party does not provide those assurances, or if the non-performance exceeds 30 days, the other party may terminate the Contract by notice given to the non-performing party before performance resumes.

16. INDEPENDENT CONTRACTOR/SUBCONTRACTS

    Supplier is and will remain an independent Supplier of Buyer. No employee, agent, or representative of Supplier or its subcontractors will be deemed to be an employee of Buyer. Supplier must obtain Buyer’s written permission before subcontracting any portion of this Contract. Except for the insurance requirements in this Contract, all subcontracts and orders thereunder will require that the subcontractor or materialman be bound by and subject to the terms and conditions of the Contract. No subcontract or order will relieve Supplier from its obligations to Buyer, including, but not limited to Supplier’s insurance and indemnification obligations. No subcontract or order will bind Buyer.

17. CHANGES

    This Contract may not be modified except by a writing signed by the parties. The Supplier’s compensation shall not exceed the maximum set forth in the Purchase Order without a writing expressly authorizing the increase signed by Buyer. Supplier agrees it shall have no right to seek additional sums based on quantum meruit, promissory estoppel, or any other theory of law, regardless of the work it performs related to this Contract.

18. MERGER AND MODIFICATION

    This Contract is intended to be the complete, exclusive, and fully integrated statement of the parties’ agreement regarding the Materials. As such, it is the sole repository of the parties’ agreement, and they are not bound by any other agreements, promises, or representations of whatsoever kind or nature. The parties also intend that this complete, exclusive and fully integrated statement of their agreement may not be supplemented or explained (interpreted) by any evidence of trade usage or course of dealing. This Contract may not be modified except by a writing signed by the parties. Regardless of the work performed by Supplier, the Supplier’s compensation shall not exceed the maximum set forth in the Purchase Order without a writing expressly authorizing the increase signed by Buyer.

19. ANTI-WAIVER

    No term or provision of this Contract shall be deemed waived, and no breach excused, unless such waiver or consent is in writing and signed by the party claimed to have provided such waiver or consent. No waiver of any right shall constitute a waiver of any other right, whether of a similar nature or otherwise. Page 3 of 3 Services 21. SURVIVAL: Notwithstanding the expiration, termination, or cancellation of this Contract, it is agreed that those rights and obligations which by their nature and context are intended to survive such expiration or termination will survive beyond such expiration, termination, or cancellation.

20. ASSIGNMENT

    Neither this Contract, nor Supplier’s rights and obligations hereunder, are assignable by Supplier without the prior written consent of Buyer. No such consent or assignment will release Supplier or alter Supplier’s liability to perform all of its obligations under this Contract. Any attempted assignment without the prior written consent of Buyer will be null and void.

21. NO VIOLATION OF LAW

    Supplier agrees to comply with all pertinent federal, state, municipal and local laws, regulations, ordinances and codes of any governmental authority having jurisdiction. Unless this Contract is otherwise exempted by law, Supplier will comply with Executive Order 11246, as amended by Executive Order 11375 (Equal Employment Opportunity) the Rehabilitation Action of 1973, the Vietnam Era Veteran’s Readjustment Assistance Act of 1974 and the Americans with Disabilities Act, as they have been or may be amended from time to time, and regulations implementing such statutes; and any similar state and local laws and ordinances and the regulations implementing such statutes. Supplier warrants that the Goods and Services delivered hereunder were produced at facilities complying with all applicable provisions of the Occupational Safety and Health Act and applicable regulations under that Act. Supplier further warrants that it will comply, where applicable, and without limitation, with all orders, standards, and regulations of the pertinent governmental administrations. Supplier and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.

22. CHOICE OF LAW AND CHOICE OF FORUM

    Any and all claims or matters of dispute between the parties to this Contract, whether arising from the Contract itself or arising from alleged extra-contractual facts or incidents, including, without limitation, fraud, misrepresentation, negligence or any other alleged tort or any breach of the Contract, shall be resolved, governed by, construed, and enforced in accordance with the laws of Ohio, regardless of the legal theory upon which such matters are asserted, including Ohio’s statutes of limitations but not including its choice of laws rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) is hereby expressly excluded. Any and all claims or matters of dispute referenced in this paragraph shall be resolved in a court of competent jurisdiction in Columbus, Ohio, which courts shall have exclusive jurisdiction of all such disputes. Supplier waives any and all objections that it might otherwise have as to personal jurisdiction or venue in such courts.

CONDITIONS OF SALE OF PRODUCT

1. The price of the Product is set forth on the front page of this Contract.  Unless otherwise provided in this Contract, Buyer shall pay all taxes, excises, fees or charges with respect to the sale and transportation of all Product shipped to Buyer.  If this Contract provides for multiple future deliveries, Seller reserves the right to effect a general price increase or change the payment or transportation terms as of the first day of any calendar quarter by written notice to Buyer, dispatched at least fifteen days prior to the first day of that quarter.  If Buyer fails to object in writing before the first day of that quarter, the proposed price revision shall become effective.  If Buyer raises objection, Seller shall within fifteen days advise Buyer whether Seller will continue to supply at the price in effect at the time of the notice of increase or cancel the Contract, without penalty, but subject to the price protection set forth below.  Seller may at any time without notice decrease the price, and if Seller puts into effect a general price decrease for the Product, shipments made while such reduced price remains in effect will be charged at the lower price.  In the event of a price increase, Buyer will receive price protection on volume of one normal month’s business (based on an average month calculated from the previous six-month period) for the month during which a price increase becomes effective and for any intervening month between the date of the increase and the beginning of the month during which the price increase becomes effective.  If less than six months shipping history exists, then the price protection volume will be based on the monthly rate of the Contract Term.  Shipment of price protected Product must be made prior to the end of the price protection period.
2. Unless otherwise specified and agreed by Seller, all Product purchased pursuant to this Agreement shall be delivered to Buyer FCA (Incoterms 2010) Seller’s plant or warehouse or such other location as Seller may determine.  Unless otherwise specified and agreed by Seller, title, liability for and risk of loss to such Product shall pass to Buyer when Product is placed in the hands of the carrier, and Buyer assumes all responsibility for shortages, losses, delays or damages in transit thereafter.  Seller will arrange for shipment to Buyer in accordance with Buyer’s shipping instructions.  If Buyer has not provided shipping instructions, Seller will arrange for shipment to Buyer in such manner as Seller selects, consistent with Seller’s ability to schedule manufacturing and shipment.  When shipment is made in bulk, certified weights and official sample at point of shipment shall govern.  Product shall be shipped by Seller in accordance with Seller’s standard shipping practices at Seller’s place of shipment.  Buyer shall pay the costs of any specialized packing, labeling, stacking or crating requested by Buyer, as may be required by law or if the Product requires specialized packaging.  Seller’s current price list for certain specialized items, referred to as “Warehouse Costs,” is available on Seller’s website or upon request.  In the event Seller is required to pay fees, demurrage, or costs with respect to the shipping of the Product, Buyer hereby agrees to pay all such fees, demurrage, and other costs, including any subsequent undercharge claims, and to indemnify and hold Seller harmless from any claims for payment of any such fees, demurrage, or other costs unless caused by Seller’s negligence or breach of this Agreement.
3. If this Contract contemplates multiple deliveries over the Term, then, unless otherwise specified, Product will be delivered ratably in shipment quantities determined by Seller.  Buyer agrees that should the Term of this Agreement expire, for any reason, without Buyer having accepted delivery of the full quantity of Product specified in this Agreement, Seller shall notify Buyer of Buyer’s failure to purchase such Product in the required quantities and shall give Buyer thirty (30) days to respond to Seller directing Seller where to ship such Product with an invoice to be sent to Buyer.  Should Buyer refuse such delivery or fail to respond to Seller within such thirty (30) day period, Seller shall have the right to destroy or otherwise dispose of such Product and Buyer shall pay for such Product, as well as for the destruction costs and storage costs incurred by Seller beyond the Term of this Agreement and any other related costs net of any amounts actually received by Seller if such Product is sold to another customer if permissible.  Buyer shall also be responsible for materials produced or purchased by Seller uniquely for the production of the Product for Buyer including, but not limited to, packaging materials.
4. Buyer (or Buyer’s freight forwarder, if one) shall inspect Product sold hereunder immediately upon receipt of the same at Buyer’s or Buyer’s freight forwarder’s facility.  UNLESS WRITTEN NOTICE OF REJECTION, SPECIFYING THE GROUNDS THEREFOR, IS RECEIVED BY SELLER WITHIN TEN (10) DAYS FROM THE DATE OF RECEIPT OF PRODUCT BY BUYER OR BUYER’S FREIGHT FORWARDER, SUCH PRODUCT SHALL AUTOMATICALLY BE DEEMED ACCEPTED.  Product, once accepted, may not be returned without prior written approval by Seller and, if Seller provides such approval Buyer agrees to return Product shipped only in its original packaging and to pay a restocking charge of 25% of the invoice price for the returned Product.  ANY CLAIM FOR DAMAGES AS A RESULT OF THE RECEIPT OF DEFECTIVE OR OTHERWISE NON-CONFORMING PRODUCT UNDER THIS AGREEMENT MUST BE MADE BY BUYER THROUGH WRITTEN NOTICE TO SELLER WITHIN TEN (10) DAYS FOLLOWING RECEIPT OF THE PRODUCT BY BUYER OR BUYER’S FREIGHT FORWARDER, DESCRIBING THE SPECIFIC DEFECT OR CLAIM ALLEGED.  FAILURE TO PROVIDE SUCH WRITTEN NOTICE WITHIN THIS TIME PERIOD SHALL BE DEEMED A WAIVER AND RELEASE OF ANY SUCH CLAIM OR RIGHT OF RECOVERY BY BUYER WITH RESPECT TO ANY SUCH DEFECTIVE OR NON-CONFORMING PRODUCT.  SELLER’S LIABILITY FOR ANY AND ALL DAMAGES, ACTIONS OR CLAIMS AS A RESULT OF RECEIPT BY BUYER OF DEFECTIVE OR OTHERWISE NON-CONFORMING PRODUCT, REGARDLESS OF THE NATURE OF SUCH CLAIMS, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PARTICULAR SHIPMENT WITH RESPECT TO WHICH A CLAIM IS MADE.  SELLER SHALL NOT BE LIABLE FOR LOST PROFITS OR FOR INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES.
5. Seller warrants title and that all Product sold hereunder at the time of shipment shall conform to Seller’s standard specifications in effect on the date of shipment or to the attached specifications, if any.  If the Product is intended for human consumption, Seller warrants that the Product, as of the date of shipment, shall be wholesome and otherwise fit for human consumption and not in violation of any State or Federal laws or regulations, and is not adulterated or misbranded within the meaning of the federal Food, Drug and Cosmetic Act, nor is it Product which may not, under the provisions of that Act, be introduced into interstate commerce.  SELLER MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT DESCRIBED HEREIN, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.  SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM BUYER’S PURCHASE OR USE OF SUCH PRODUCT OR FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING THEREFROM.  SELLER’S TOTAL LIABILITY TO BUYER FOR ANY BREACH OF THIS LIMITED WARRANTY, OR FOR ANY CLAIM THAT THE PRODUCT DELIVERED HEREUNDER WAS DEFECTIVE OR NON-CONFORMING, SHALL BE LIMITED TO THE INVOICE PRICE OF ANY GOODS SHOWN TO BE DEFECTIVE, NON-CONFORMING, OR IN VIOLATION OF THE LIMITED WARRANTY PROVIDED HEREIN.
6. Waiver by either party of any default of the other shall not operate to excuse the defaulting party from further compliance with this Contract.  If Buyer fails to make any payment under this Contract when due, Seller, in addition to other legal remedies, shall have the right to, in its discretion, withhold further shipments, require immediate cash payments for past and future shipments or require other security satisfactory to Seller before further deliveries shall be made, or to terminate this Contract.
7. Seller warrants that the Product to be delivered hereunder does not infringe the claims of any United States patent covering the Product itself; however, this warranty does not include charges of infringement arising by reason of the Buyer’s conversion of the Product to another form, or its use in combination with other material, or its use in the operation of any process.  In the event any suit or legal proceeding is brought against Buyer based on a claim that the Product furnished hereunder in itself constitutes an infringement of any United States patent, the Seller shall defend at its own expense that portion of any suit or legal proceeding relating to said claim and will pay any damages or costs including attorney’s fees awarded on said claim against Buyer, provided Buyer gives Seller prompt written notice of such infringement claim and of the institution of such suit or proceeding and also gives Seller all necessary authority, information and reasonable assistance to enable Seller, at Seller’s option, to settle or defend the same as to said claim.  The foregoing states the parties’ entire agreement as to charges of infringement.
8. Should Seller’s supply of available Product or its ability to make delivery be limited by any factor whatsoever beyond the reasonable control of itself or its affiliated companies, including, but not limited to, labor difficulties, fires, action of the elements, accidents, failure or delay occasioned by carriers, governmental action, whether valid or not, or in the event of inability to obtain on terms deemed by Seller to be practicable any raw material (including energy source), etc., Seller will allocate its supply, available for sale to its customers, on a fair and equitable basis selected by the Seller.  Seller shall not be obligated to make up deficiencies in deliveries hereunder due to any such cause.  Labor difficulties, fires, action of the elements, accidents, failure or delay occasioned by carriers, governmental action, whether valid or not, or other causes beyond the reasonable control of Buyer which prevent Buyer from receiving and/or using Product covered by this contract shall operate to suspend deliveries during the period required to remove such cause.  In the event Seller is unable to supply Product to Buyer due to an event of force majeure, Buyer may purchase Product from a third-party supplier for the period of time that such event of force majeure is in effect.
9. Should Seller elect to discontinue, curtail or limit the production or sale of Product due to the application of any governmental statute, regulation or order including but not limited to price controls, transportation, energy controls, pollution control, or product safety which, in Seller’s judgment, will render the production or marketing of the Product economically, technologically or commercially infeasible, Seller may terminate this Contract upon thirty days prior written notice to Buyer.
10. Each delivery of Product shall constitute a separate sale with the same effect as though made under a separate contract covering the amount thereof.  Any delay or default by Seller with respect to any delivery shall not affect Buyer’s obligation to order, accept, and pay for future deliveries.
11. Whether this agreement refers to manufactured items or to work, Seller warrants and agrees that it has complied, and will comply with (1) Fair Labor Standards Act as amended, and (2) Social Security and Workmen’s Compensation Laws as amended, if work is done on Buyer’s premises, and (3) all other applicable laws, codes, regulations, rules and orders.
12. Neither party may assign this Contract without the express written consent of the other party; provided, however, that either part may assign this Contract to an affiliated company without restriction.
13. Unless otherwise specified, this Contract shall be governed by the laws of the State of Ohio.
14. Any and all claims or matters of dispute referenced in this paragraph shall be resolved in a court of competent jurisdiction in Columbus, Ohio, which courts shall have exclusive jurisdiction of all such disputes. Supplier waives any and all objections that it might otherwise have as to personal jurisdiction or venue in such courts.
15. All information provided by Seller hereunder, including, but not limited to, the terms and conditions of this Agreement, must be held in confidence by Buyer.  This obligation shall survive the termination or expiration of this Agreement.
16. Whenever possible, each provision of this Agreement and any invoices or subsequent written contracts executed pursuant to this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement or any invoice or contract related hereto shall be prohibited by or invalid under such law, such provisions shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any invoice or contract related hereto.  Any failure by Seller to exercise any right or remedy hereunder shall not be construed as a waiver of the exercise of that right or any other right at any subsequent time prior to payment of all amounts due Seller.
17. This Agreement, together with any invoices issued hereunder and any other written contracts executed pursuant to this Agreement, incorporates all the understandings of the parties with respect to the matters contained herein and supersedes all prior agreements, negotiations or communications, whether oral, written, or implied concerning the subject matter of this Agreement.  In the event of any discrepancy between this Agreement and any invoice or other agreement between the parties, the terms of this Agreement shall control.

CONDITIONS OF SALE OF SERVICE

1. The price for the Services and any packaging or other materials provided by Seller is set forth on the front page of this Contract.  Unless otherwise provided in this Contract, Buyer shall pay all taxes (excluding taxes on income), excises, fees or charges with respect to the provision of the Services, sale of any materials supplied by Seller and transportation of all Products to Buyer.  If this Contract provides for multiple future deliveries, Seller reserves the right to effect a general price increase or change the payment or transportation terms as of the first day of any calendar quarter by written notice to Buyer, dispatched at least fifteen days prior to the first day of that quarter.  If Buyer fails to object in writing before the first day of that quarter, the proposed price revision shall become effective.  If Buyer raises objection, Seller shall within fifteen days advise Buyer whether Seller will continue to supply at the price in effect at the time of the notice of increase or cancel the Contract, without penalty, but subject to the price protection set forth below.  Seller may at any time without notice decrease the price, and if Seller puts into effect a general price decrease for the Services, shipments made while such reduced price remains in effect will be charged at the lower price.  In the event of a price increase, Buyer will receive price protection on volume of one normal month’s business (based on an average month calculated from the previous six-month period) for the month during which a price increase becomes effective and for any intervening month between the date of the increase and the beginning of the month during which the price increase becomes effective.  If less than six months shipping history exists, then the price protection volume will be based on the monthly rate of the Contract Term.  Provision of price protected Services must be made prior to the end of the price protection period.
2. Risk of loss to Product and packaging materials supplied by Buyer to Seller for provision of Services hereunder shall pass to Seller when the Product or materials are received by Seller.  Unless otherwise specified and agreed by Seller, all finished Product packaged pursuant to this Agreement shall be delivered to Buyer FCA (Incoterms 2010) Seller’s plant or warehouse or such other location as Seller may determine.  Unless otherwise specified and agreed by Seller, liability for and risk of loss to such Product and packaging materials shall pass back to Buyer when Product is placed in the hands of the carrier, and Buyer assumes all responsibility for shortages, losses, delays or damages in transit thereafter.  Seller will arrange for shipment to Buyer in accordance with Buyer’s shipping instructions.  If Buyer has not provided shipping instructions, Seller will arrange for shipment to Buyer in such manner as Seller selects, consistent with Seller’s ability to schedule processing and shipment.  When shipment is made in bulk, certified weights and official sample at point of shipment shall govern.  Finished packaged Product shall be shipped by Seller in accordance with Seller’s standard shipping practices at Seller’s place of shipment.  Buyer shall pay the costs of any specialized packing, crating, freight express or cartage requested by Buyer, as may be required by law or if the Product requires specialized packaging.  Seller’s current price list for certain specialized items, referred to as “Warehouse Costs,” is available on Seller’s website or upon request.  In the event Seller is required to pay fees, demurrage, or costs with respect to the shipping of the Product, Buyer hereby agrees to pay all such fees, demurrage, and other costs, including any subsequent undercharge claims, and to indemnify and hold Seller harmless from any claims for payment of any such fees, demurrage, or other costs unless caused by Seller’s negligence or breach of this Agreement.
3. If this Contract contemplates multiple deliveries over the Term, then, unless otherwise specified, Product will be delivered ratably in shipment quantities determined by Seller.  Buyer agrees that should the Term of this Agreement expire, for any reason, without Buyer having accepted delivery of the full quantity of finished packaged Product specified in this Agreement, Seller shall notify Buyer of Buyer’s failure to purchase the Services in the required quantities and shall give Buyer thirty (30) days to respond to Seller directing Seller where to ship any unpackaged Product with an invoice to be sent to Buyer.  Should Buyer refuse such delivery or fail to respond to Seller within such thirty (30) day period, Seller shall have the right to destroy or otherwise dispose of such Product, as well as for the destruction costs and storage costs incurred by Seller beyond the Term of this Agreement and any other related costs net of any amounts actually received by Seller if such Product is sold to another customer if permissible.  Buyer shall also be responsible for materials produced or purchased by Seller uniquely for the provision of the Services for Buyer including, but not limited to, packaging materials.
4. Buyer (or Buyer’s freight forwarder, if one) shall inspect packaged Product delivered hereunder immediately upon receipt of the same at Buyer’s or Buyer’s freight forwarder’s facility.  UNLESS WRITTEN NOTICE OF REJECTION, SPECIFYING THE GROUNDS THEREFOR, IS RECEIVED BY SELLER WITHIN TEN (10) DAYS FROM THE DATE OF RECEIPT OF PACKAGED PRODUCT BY BUYER OR BUYER’S FREIGHT FORWARDER, SUCH PACKAGED PRODUCT SHALL AUTOMATICALLY BE DEEMED ACCEPTED.  ANY CLAIM FOR DAMAGES AS A RESULT OF THE RECEIPT OF DEFECTIVE OR OTHERWISE NON-CONFORMING PACKAGED PRODUCT UNDER THIS AGREEMENT MUST BE MADE BY BUYER THROUGH WRITTEN NOTICE TO SELLER WITHIN TEN (10) DAYS FOLLOWING RECEIPT OF THE PACKAGED PRODUCT BY BUYER OR BUYER’S FREIGHT FORWARDER, DESCRIBING THE SPECIFIC DEFECT OR CLAIM ALLEGED.  FAILURE TO PROVIDE SUCH WRITTEN NOTICE WITHIN THIS TIME PERIOD SHALL BE DEEMED A WAIVER AND RELEASE OF ANY SUCH CLAIM OR RIGHT OF RECOVERY BY BUYER WITH RESPECT TO ANY SUCH DEFECTIVE OR NON-CONFORMING PACKAGED PRODUCT.  SELLER’S LIABILITY FOR ANY AND ALL DAMAGES, ACTIONS OR CLAIMS AS A RESULT OF RECEIPT BY BUYER OF DEFECTIVE OR OTHERWISE NON-CONFORMING PACKAGED PRODUCT, REGARDLESS OF THE NATURE OF SUCH CLAIMS, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE SERVICES PROVIDED WITH RESPECT TO THE PARTICULAR SHIPMENT WITH RESPECT TO WHICH A CLAIM IS MADE.  SELLER SHALL NOT BE LIABLE FOR LOST PROFITS OR FOR INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES.
5. Seller warrants that all Services performed hereunder shall conform to Seller’s standard specifications in effect on the date the Services are performed or to the attached specifications, if any.  SELLER MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES DESCRIBED HEREIN, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.  SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM BUYER’S PURCHASE OR USE OF SUCH SERVICES OR FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING THEREFROM.  SELLER’S TOTAL LIABILITY TO BUYER FOR ANY BREACH OF THIS LIMITED WARRANTY, OR FOR ANY CLAIM THAT THE SERVICES DELIVERED HEREUNDER WERE DEFECTIVE OR NON-CONFORMING, SHALL BE LIMITED TO THE INVOICE PRICE OF ANY SERVICES SHOWN TO BE DEFECTIVE, NON-CONFORMING, OR IN VIOLATION OF THE LIMITED WARRANTY PROVIDED HEREIN.
6. Waiver by either party of any default of the other shall not operate to excuse the defaulting party from further compliance with this Contract.  If Buyer fails to make any payment under this Contract when due, Seller, in addition to other legal remedies, shall have the right to, in its discretion, withhold further shipments, require immediate cash payments for past and future shipments or require other security satisfactory to Seller before further deliveries shall be made, or to terminate this Contract.
7. Seller warrants that the Services to be delivered hereunder do not infringe the claims of any United States patent covering the Services themselves; however, this warranty does not include charges of infringement arising by reason of the Buyer’s conversion of the Product to another form, or its use in combination with other material, or its use in the operation of any process.  In the event any suit or legal proceeding is brought against Buyer based on a claim that the Services furnished hereunder in themselves constitute an infringement of any United States patent, the Seller shall defend at its own expense that portion of any suit or legal proceeding relating to said claim and will pay any damages or costs including attorney’s fees awarded on said claim against Buyer, provided Buyer gives Seller prompt written notice of such infringement claim and of the institution of such suit or proceeding and also gives Seller all necessary authority, information and reasonable assistance to enable Seller, at Seller’s option, to settle or defend the same as to said claim.  The foregoing states the parties’ entire agreement as to charges of infringement.
8. Should Seller’s supply of Services or its ability to make delivery be limited by any factor whatsoever beyond the reasonable control of Seller or its affiliated companies, including, but not limited to, labor difficulties, fires, action of the elements, accidents, failure or delay occasioned by carriers, governmental action, whether valid or not, or in the event of inability to obtain on terms deemed by Seller to be practicable any raw material (including energy source), etc., Seller will allocate its supply, available for sale to its customers, on a fair and equitable basis selected by the Seller.  Seller shall not be obligated to make up deficiencies in deliveries hereunder due to any such cause.  Labor difficulties, fires, action of the elements, accidents, failure or delay occasioned by carriers, governmental action, whether valid or not, or other causes beyond the reasonable control of Buyer which prevent Buyer from receiving and/or using Product covered by this contract shall operate to suspend deliveries during the period required to remove such cause.  In the event Seller is unable to supply Services to Buyer due to an event of force majeure, Buyer may purchase Services from a third-party supplier for the period of time that such event of force majeure is in effect.
9. Should Seller elect to discontinue, curtail or limit the provision of Services due to the application of any governmental statute, regulation or order including but not limited to price controls, transportation, energy controls, pollution control, or product safety which, in Seller’s judgment, will render the production or marketing of the Product economically, technologically or commercially infeasible, Seller may terminate this Contract upon thirty days prior written notice to Buyer.
10. Each provision of Services shall constitute a separate sale with the same effect as though made under a separate contract covering the amount thereof.  Any delay or default by Seller with respect to any delivery shall not affect Buyer’s obligation to order, accept, and pay for future deliveries.
11. Seller warrants and agrees that it has complied, and will comply with (1) Fair Labor Standards Act as amended, and (2) Social Security and Workmen’s Compensation Laws as amended, and (3) all other applicable laws, codes, regulations, rules and orders.
12. Neither party may assign this Contract without the express written consent of the other party; provided, however, that either part may assign this Contract to an affiliated company without restriction.
13. Unless otherwise specified, this Contract shall be governed by the laws of the State of Ohio.
14. Any and all claims or matters of dispute referenced in this paragraph shall be resolved in a court of competent jurisdiction in Columbus, Ohio, which courts shall have exclusive jurisdiction of all such disputes. Supplier waives any and all objections that it might otherwise have as to personal jurisdiction or venue in such courts.
15. All information provided by Seller hereunder, including, but not limited to, the terms and conditions of this Agreement, must be held in confidence by Buyer.  This obligation shall survive the termination or expiration of this Agreement.
16. Whenever possible, each provision of this Agreement and any invoices or subsequent written contracts executed pursuant to this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement or any invoice or contract related hereto shall be prohibited by or invalid under such law, such provisions shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any invoice or contract related hereto.  Any failure by Seller to exercise any right or remedy hereunder shall not be construed as a waiver of the exercise of that right or any other right at any subsequent time prior to payment of all amounts due Seller.
17. This Agreement, together with any invoices issued hereunder and any other written contracts executed pursuant to this Agreement, incorporates all the understandings of the parties with respect to the matters contained herein and supersedes all prior agreements, negotiations or communications, whether oral, written, or implied concerning the subject matter of this Agreement.  In the event of any discrepancy between this Agreement and any invoice or other agreement between the parties, the terms of this Agreement shall control.