Terms and Conditions
The FilamentFactory GmbH (“The FilamentFactory”)
TERMS AND CONDITIONS OF SALE FOR USE UNDER GERMAN LAW- 1.SCOPE OF APPLICATION 1.1 These Terms and Conditions of Sale (“Terms”) shall exclusively apply to all purchases by Buyer of Product (the “Buyer”) from The FilamentFactory. Such purchases may be effected by sales agreements, exchange of offer and acceptance (whether or not on the basis of framework agreements) and/or electronic order facilities (the “Sales Agreement”). These Terms form an integral part of any such Sales Agreement, together constituting the entire Agreement (the “Agreement”). Once Buyer has agreed to the inclusion of these Terms in any Sales Agreement, these Terms shall exclusively apply to all future business between the parties even without further inclusion statement in new Sales Agreements unless the parties agree otherwise in writing. 1.2 Unless such provisions are expressly agreed to by The FilamentFactory in written form and included into the agreement, any additional or conflicting terms and conditions contained on, attached to or referenced by any declarations of Buyer when concluding the Sales Agreement, or other prior or later communication from Buyer to The FilamentFactory, shall have no effect on the purchase of any such Product by Buyer from The FilamentFactory and are expressly rejected by The FilamentFactory. Any other provisions of the buyer shall not apply even if The FilamentFactory accepts the customer’s performance without objection. 2. CONCLUSION OF A CONTRACT 2.1 The Sales Agreement between the buyer and The FilamentFactory comes about by conclusion of a written sales contract, by a written order confirmation of The FilamentFactory or by the unconditional fulfilment of an order by The FilamentFactory. Content of the sales contract, price, name, and description of the ordered goods result from the written sales contract or the order confirmation of The FilamentFactory, if such is made. The price list valid on the day of order confirmation shall apply. 2.2 If there is an increase in our purchase prices or wage or salary, between order confirmation or conclusion of a written Sale Agreement and delivery of the products, The FilamentFactory reserves the right to adjust prices to the same extent. 3.SHIPMENT AND RISK OF LOSS 3.1 Unless otherwise stated in the Sales Agreement, all Product shall be shipped Ex Works The FilamentFactory’s designated shipping point (in accordance with Incoterms 2000). 3.2 Unless otherwise stated in the Sales Agreement, risk of loss, damage and contamination of Product passes to Buyer when The FilamentFactory places Product with a common carrier at the shipping point and Product shall be deemed “delivered” at such time. 3.3 After placement of Product with the common carrier, Buyer shall be responsible for handling and supervising the delivery of Product and shall indemnify The FilamentFactory for any loss or damage to persons, property or the environment arising out of or related to Buyer’s breach of this section 3.3. 3.4 The FilamentFactory will not place a valuation upon Product shipments unless specifically required in writing by Buyer or required for export purposes. 4.TAXES AND DUTIES 4.1 All taxes, duties, tariffs, consular fees, levies, penalties, and other charges imposed by any governmental authority, now or hereafter imposed with respect to the Agreement or the production, processing, manufacture, sale, delivery, transportation, importation, exportation or proceeds of Product hereunder or on remittance of funds in payment for Product shall be borne by Buyer. If paid, or required to be paid by The FilamentFactory, Buyer shall reimburse The FilamentFactory for such amounts within ten (10) days of receipt of written notice from The FilamentFactory. If any Product is rejected for reasons not attributable to The FilamentFactory, Buyer shall pay all taxes, duties, tariffs, consular fees, levies, penalties or other charges resulting from failure to re-export Product from the country of destination within such time limits as may be prescribed by applicable law. 4.2 The FilamentFactory reserves to itself all applicable duty drawback allowances, and Buyer shall provide assistance in connection with The FilamentFactory’s application for the same. 5.PRODUCT HANDLING 5.1 Buyer acknowledges the hazards associated with the handling, unloading, discharge, storage, transportation, use, disposition, processing, admixture, or reaction (the “Use”) of Product supplied under the Agreement and assumes the responsibility of advising those of its employees, agents, contractors, and customers in connection with such Use of the hazards to human health or human or environmental safety, whether such Product is used singly or in combination with other substances or in any processes or otherwise. 5.2 Buyer warrants to The FilamentFactory that Buyer has sufficient experience in the Use of Product. 5.3 In the event that Buyer is provided a Material Safety Data Sheet (Sicherheitsdatenblatt) (“MSDS”) by The FilamentFactory for the Product, Buyer specifically agrees that Buyer shall advise all employees, agents, contractors and customers who will Use the Product of the MSDS, and any supplementary MSDS or written warnings that it may receive from The FilamentFactory from time-to-time. In addition, if Buyer believes or has reason to believe the MSDS or other information provided to Buyer by The FilamentFactory is inaccurate or in any way insufficient for any purpose, Buyer will immediately notify The FilamentFactory of the same, and provide The FilamentFactory a reasonable opportunity to supplement or correct the information. Buyer shall be liable for its failures to advise of the MSDS and to timely provide such notice. Buyer shall defend, indemnify and hold The FilamentFactory, its affiliates and their respective employees, officers, directors and stockholders (collectively “Indemnities”) harmless from and against any and all claims, demands, lawsuits, causes of action, strict liability claims, penalties, fines, administrative law actions and orders, expenses (including attorneys’ fees and expenses) and costs and liabilities of every kind and character (“Claims”) which may arise, including personal injuries, death, damage to property or to the environment, regardless of whether based on negligence, strict liability, contract, or breach of warranty, arising out of or related to a breach of Buyer’s obligations under this Agreement or Use of Product or material made in whole or in part from Product sold hereunder. Buyer’s duty under this Agreement shall survive the termination, cancellation or expiration of the Agreement or any orders there under and the cessation of any business transactions between Buyer and The FilamentFactory, and Buyer’s obligations herein shall remain in full force and effect as necessary for the purposes of compliance with the terms of this section. 6.DELIVERIES 6.1 If Buyer contrary to its obligation under section 2.1 has not taken responsibility for shipment by the time Product is ready for shipment, The FilamentFactory may at its discretion select any reasonable method of shipment and Buyer shall bear the cost of such shipment method. Buyer herewith authorizes The FilamentFactory to order such shipment in the name and on behalf of Buyer. To the extent flexibility is allowed by the Agreement for time or size of deliveries, the contracting parties will cooperate to the extent reasonable to coordinate periods and times for deliveries hereunder, and Buyer will give reasonable prior notice as to quantities and scheduling desired, all subject to the quantities set forth in the Agreement. Buyer shall be solely liable for any demurrage arising out of the transportation, delivery, loading or storage of the Product hereunder, and The FilamentFactory shall not be liable to Buyer for damages or charges resulting from a delay in the delivery of Product unless attributable to The FilamentFactory. 6.2 If and to the extent that Product sold hereunder is to be delivered from any The FilamentFactory facility, The FilamentFactory shall have the right to require the execution of an access agreement prior to granting Buyer, its carriers, contractors or agents, access to such facility. Buyer is solely responsible for the delivery and agrees that it, and its carriers, contractors and agents, as a minimum, will comply with all of The FilamentFactory’s safety rules and regulations when they are at any of The FilamentFactory’s facilities. The FilamentFactory will make available to Buyer such rules and regulations on request. 6.3 The FilamentFactory may reject transports, containers or storage presented for loading/unloading/transfer or handling which, in The FilamentFactory’s sole discretion, would present an unsafe or potentially unsafe situation. 6.4 The FilamentFactory may refuse to load/unload, transfer or handle any Product under any conditions it deems, in The FilamentFactory’s dutiful discretion, unsafe, including, but not limited to, conditions caused by drivers, personnel, equipment, procedures, and/or weather conditions. 6.5 If Buyer, or its contractors or agents, loads, unloads or ships hazardous materials (Gefahrgut) pursuant to the Agreement, then Buyer warrants that all hazardous materials will be prepared for shipment, loaded, shipped and unloaded in compliance with all applicable Laws regarding the handling and transportation of hazardous materials. Buyer will indemnify, defend and hold the Indemnities harmless from and against all Claims of whatever nature arising out of or relating to Buyer’s failure to comply therewith. 6.6 If a release of Product occurs after Product has been loaded at The FilamentFactory’s shipping point, as between The FilamentFactory and Buyer, Buyer will make all release notifications and reports that are required by Law and will provide The FilamentFactory with written notice of such release notifications and reports within two (2) days of making the same. Further, as between The FilamentFactory and Buyer, Buyer will be responsible for, and will promptly clean up, all such releases pursuant to applicable Laws. 6.7 For all deliveries under the Agreement, Buyer is solely responsible for offloading or unloading all Product. To the extent Buyer fails to offload or unload the entire quantity of Product from the transport or container utilized for shipment (i) any residual or remaining Product shall be deemed to have been abandoned by Buyer for the beneficial use or re-use by The FilamentFactory, and will become the property of The FilamentFactory when received and accepted by The FilamentFactory at the facility designated in writing by The FilamentFactory; (ii) Buyer will not receive credit, payment or other consideration for any such residual or remaining Product; and (iii) Buyer is solely responsible for the transportation of such residual or remaining Product (including freight charges, shipping documents, and compliance with all Laws related thereto) until received and accepted by The FilamentFactory at the facility designated in writing by The FilamentFactory. 7.RETENTION OF TITLE (EXTENDED) 7.1 Product shall remain The FilamentFactory’s property until all claims raising out The FilamentFactory’s business relationship with Buyer have been settled. If Product has been processed or finished by Buyer, the retention of title shall extend to the new finished product. 7.2 If Product has been processed, combined or mixed by Buyer with products of others, The FilamentFactory acquires joint title pro rata, to that part of the final product that represents the invoiced value of Product in relation to the total value of the other products which have been processed, combined or mixed. 7.3 In the event that Product is combined or mixed with main products of Buyer or of any third party, Buyer hereby assigns its rights to The FilamentFactory with regard to the new product. If Buyer combines or mixes Product with main products of a third party for compensation, Buyer hereby assigns to The FilamentFactory its right to compensation from third party. 7.4 Buyer may, in the ordinary course of its business, resell any products (including Product) which are subject to The FilamentFactory. Buyer hereby assigns to The FilamentFactory all of its claims arising from such resale and The FilamentFactory herewith authorizes Buyer to collect the proceeds from such resale in its own name but for the account of The FilamentFactory, for as long and to the extent necessary to cover the claims of the FilamentFactory. If, according to such resale, Buyer does not receive the full purchase price in advance, Buyer shall agree with its customer a retention of title in accordance with this section. Buyer hereby assigns to The FilamentFactory all of its claims arising under such agreement for retention of title. When required by The FilamentFactory, the Buyer shall advise its customer of such assignment of rights and provide The FilamentFactory with the information and documents necessary to enforce The FilamentFactory’s rights. The FilamentFactory shall be entitled to collect any payments received by Buyer pursuant to the authorization granted by The FilamentFactory and/or to enforce the retention of title against Buyer’s customer if Buyer is in default with its payment obligations out of The FilamentFactory’s business relationship with Buyer. 7.5 In the event that the value of the property in which the security interest is granted to The FilamentFactory exceed the value of The FilamentFactory’s claims by more than 30%, The FilamentFactory shall, when requested, be obliged to release security interests which The FilamentFactory deems appropriate to reduce security to the appropriate amount. 7.6 The FilamentFactory may reclaim Product on account of the retention of title even if The FilamentFactory has not yet withdrawn from the Sales Agreement and any exercise of the retention of title will only be seen as withdrawal from the Sales Agreement if The FilamentFactory has beforehand expressly declared this in writing. 8.COMPLIANCE WITH LAW 8.1 The parties agree to comply with all applicable laws, treaties, conventions, directives, statutes, ordinances, rules, regulations, orders, writs, judgments, injunctions or decrees of any governmental authority having jurisdiction (“Laws”) pertaining to the fulfilment of the Agreement. 8..2 Buyer will be responsible for compliance with all Laws applicable to Product once the Product has been delivered by The FilamentFactory in accordance with this Agreement, including, without limitation, those related to operations, safety, maintenance, equipment, size and capacity, and pollution prevention. 8.3 If any license or consent of any government or other authority is required for the acquisition, carriage or Use of Product by Buyer, Buyer will obtain the same at its expense, and if necessary, provide evidence of the same to The FilamentFactory on request. Failure to do so will entitle The FilamentFactory to withhold or delay shipment, but failure to do so will not entitle Buyer to withhold or delay payment of the price therefore. Any expenses or charges incurred by The FilamentFactory resulting from such failure will be paid for by Buyer within ten (10) days of receipt of The FilamentFactory’s written request. 8.4 Except as permitted under U.S. Laws and European Community law or national law, Product will not be sold, supplied or delivered by the Buyer directly or indirectly to any party or destination that, at the time of such sale, supply or delivery, is declared an embargoed/restricted party or destination by the government of the United States of America or by the United Nations, the European Union and/or its member states. Within two (2) days after The FilamentFactory’s request, Buyer will provide The FilamentFactory with appropriate documentation to verify the final destination of any Product delivered hereunder. 9.UNLOADING AND CONTAINERS 9.1 Buyer will unload and release all transportation equipment promptly so that no demurrage or other expense or loss resulting from delay shall be incurred and will comply with all instructions, if any, that The FilamentFactory may give for return of such equipment. Buyer shall return returnable containers or packaging, freight collect. Buyer shall assume all other liability, including demurrage, with respect to such returnable containers and equipment, including packaging unless attributable to The FilamentFactory. 9.2 Buyer agrees that if Buyer fails to return such containers and equipment within 120 days from date of invoice, The FilamentFactory, at its option, shall have the right to transfer title to such unreturned containers or equipment to Buyer by invoicing Buyer for the same at The FilamentFactory’s then established prices, and the purchase price for such containers and equipment shall be due from Buyer upon receipt of invoice. 10.MEASUREMENT 10.1 Product quantities will be determined by The FilamentFactory’s measurement equipment at The FilamentFactory’s designated shipping point, unless proven to be in error. No adjustments will be made for any shortfall unless: (i) The FilamentFactory is notified in writing of such shortfall within ten (10) days after delivery; and (ii) such shortfall is more than three percent (3%) of the quantities measured by The FilamentFactory at the shipping point. Product quality shall be governed by a sample of Product taken by The FilamentFactory at The FilamentFactory’s designated shipping point. 11.CLAIMS 11.1 Buyer shall, at its own cost and expense, inspect Product delivered hereunder for any defects without undue delay after receipt. Within ten (10) days of Buyer’s receipt of Product and before the use, disposition, processing, admixture, reaction or other change from the original condition of any part of the Product (except for reasonable test and inspection quantities), Buyer shall notify The FilamentFactory in writing if Product is found non-conforming or short in any respect. Buyer specifically acknowledges and agrees that Buyer must test the compatibility of any fiber Products prior to any Use of fiber Products if the fiber merge number or other identifier differs from that designated in previous shipments. Any Use of any of Product (except for reasonable tests and inspection quantities) or Buyer’s failure to give written notice to The FilamentFactory of such defect or shortage within such ten (10) day period shall constitute an acceptance of the Product (including hidden defects, if any). 12.PAYMENT TERMS/LOAN/SET-OFF 12.1 Buyer shall pay all invoices, without deduction, in Euro via wire transfer of immediately available funds into a German bank account designated by The FilamentFactory pursuant to the payment terms set forth in the Agreement. If the Agreement does not state payment terms, payment shall be received by The FilamentFactory no later than thirty (30) days from the date of The FilamentFactory’s invoice. In the event of default of payment by the buyer, interest of 9 percentage points above the base rate will be charged from the due date of payment. If the payment due date is a Saturday, Sunday or a day officially recognized in the place of declaration or performance as a public holiday, payment shall be due on the business day after such due date. 12.2 The FilamentFactory does not guarantee or warrant the amount of any loan granted to the buyer or the continuation of any such loan. If The FilamentFactory, in its sole discretion, grants the purchaser a credit line to enable the purchase of The FilamentFactory products under the Agreement, such credit line may be changed, reduced or terminated at any time at The FilamentFactory’s sole discretion. 12.3 If the buyer is granted such a loan or The FilamentFactory requires the buyer to provide a performance guarantee, the buyer will provide The FilamentFactory with all the annual reports requested by The FilamentFactory with the audited consolidated financial statements for a specific financial year of the buyer and/or the person providing the buyer’s performance guarantee. In all cases, the statements shall be for the most recent accounting period and prepared in accordance with generally accepted accounting principles. 12.4 Notwithstanding the foregoing, if the creditworthiness and future performance of Buyer is impaired or unsatisfactory, The FilamentFactory may require from Buyer (i) prepayment by wire transfer of immediately available funds at least three (3) days prior to a scheduled shipment of Product, or (ii) Performance Assurance at least three (3) days prior to a scheduled Product shipment. In the event that Buyer neither provides the prepayment nor the Performance Assurance, The FilamentFactory is entitled to suspend the delivery of Product. “Performance Assurance” means collateral in the form of either cash, letter(s) of credit, guaranty, or other security acceptable to The FilamentFactory in its sole discretion. 12.5 Counterclaims against The FilamentFactory only entitle the buyer to offset or withhold payments if these counterclaims are undisputed or have been legally established. 13.WARRANTY/PRODUCT QUALITY AND REMEDIES FOR NON-CONFORMING GOODS 13.1 The FilamentFactory warrants only, at the time of delivery, that: (i) Product shall conform to The FilamentFactory’s then current specifications for the specific Product sold hereunder; and (ii) The FilamentFactory will deliver good title to the Product and that the Product shall be delivered free of liens or encumbrances or any other third party rights impairing the use of the Product by Buyer. 13.2 If Product is non-conforming and Buyer has duly notified The FilamentFactory, Buyer has its statutory rights, provided that: (i) The FilamentFactory has the right to choose whether to remedy the defect or supply Buyer with non-defective replacement goods. (ii) The FilamentFactory may make two attempts according to lit. (i) above to remedy the defect. Only if these attempts fail or are unacceptable to Buyer, Buyer may either withdraw from the contract or demand a reduction in the purchase price. (iii) With regard to claims for damages or reimbursement of expenses the limitations set forth in section 14 shall apply. 13.3 The FilamentFactory shall only bear any necessary expenses for the removal of a defective item and the installation or attachment of a repaired or re-delivered item free of defects to the extent that the costs were typical for the contract and foreseeable in accordance with the intended purpose of the contract and the buyer has documented the expenses completely and comprehensibly. 13.4 Notwithstanding the foregoing, The FilamentFactory shall examine the Buyer’s notification of defects within a reasonable time and shall inform the Buyer immediately after the inspection whether customer service will be made available to the Buyer for further inspection of the reported defect and, if necessary, for its rectification or whether the affected products can be returned. Should the customer, without prior consultation with The FilamentFactory, take unauthorized measures in view of the reported defect, the customer must bear the resulting additional costs. 14.LIABILITY 14.1 The FilamentFactory’s liability for damages shall be subject to the following exclusions and limitations. The exclusions and limitations shall apply to all claims, irrespective of their legal grounds, including claims for breach of pre-contractual duties (vorvertragliche Pflichten), breach of ancillary duties (Nebenpflichten) as well as claims based on tortious liability, including manufacturer’s liability (Produzentenhaftung) according to sections 823 et seq. of the German Civil Code (Bürgerliches Gesetzbuch; “BGB”). 14.2 In case of a simple negligent breach (“einfache Fahrlässigkeit”) of essential contractual obligations, The FilamentFactory’s liability is limited to the typical contractual foreseeable damage. 14.3 Essential contractual obligations within the meaning of the aforementioned provisions are obligations which (i) protect the essential legal positions of the contractual partner which the contract has to grant him according to its content and purpose; (ii) contractual obligations the fulfilment of which is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely; (iii) duties of advice, protection and obligation which enable the contractual partner to use the goods in accordance with the contract and (iv) main obligations of the contract in a mutual relationship. 14.4 Any liability of The FilamentFactory (i) for breaches of non-material contractual duties due to simple negligence or a lesser degree of fault (Verschulden) or (ii) for breaches of non-material contractual duties by vicarious agents who are not legal representatives (managing directors or members of the executive board, or senior employees (leitende Angestellte) shall beexcluded. 14.5 The FilamentFactory’s liability shall neither be excluded nor limited (i) for claims pursuant to the German Product Liability Act (Produkthaftungsgesetz), (ii) for any damage which is caused intentionally or grossly negligent, or malicious, (iii) damages caused by the lack of an assured property or a guarantee of workmanship or properties (Herstellungs- oder Beschaffenheitsgarantie) expressly granted and designated as such and designated as such and (iv) for personal injury, damage of health or death. 14.6 Wherever it is stated in this Agreement that an event or damage must be attributable to The FilamentFactory such event or damage is only attributable if The FilamentFactory is liable under the limitations and exclusions set forth in this section 14.7 Unless contrary to the statements above, The FilamentFactory GmbH shall not be liable for damages other than to the Product itself. In particular, The FilamentFactory GmbH’s liability for damages caused by a defective product shall not include lost profit, consequential damages and other financial losses. 14.8 Section 254 of the German Civil Code (mitigation of damages) remains unaffected. 15.STATUTE OF LIMITATION 15.1 Buyer’s claims for non-conforming Product shall become statute-barred one year after delivery of Product. 15.2 Buyer’s claims for damages and other forms of compensation (except for non-conforming Product) shall become statute-barred one year after Buyer has become aware of the relevant breach of contract or damaging event. 15.3 In the following cases the statutory periods of limitation apply instead of the one-year period: (i) liability for wilful misconduct, (ii) liability for fraudulent concealment of a defect, and (iii) claims under the German Product Liability Act (Produkthaftungsgesetz). 16.RIGHTS IN THE EVENT OF DEFAULT 15.1 Upon the occurrence of any of the following events: (i) the failure by Buyer to provide Performance Assurance when due; (ii) The FilamentFactory shall not have received a payment due from Buyer hereunder by the date such payment is due under the Agreement, and such failure shall remain uncured for a period of five (5) days; (iii) the failure of Buyer to perform any other obligation in the Agreement and such failure is not excused or cured within ten (10) days after written notice thereof; (iv) the occurrence of a Bankruptcy Event; (v) the failure of Buyer to timely provide prepayment or Performance Assurance as set forth in section 11.4 above; or (vi) the failure by any Performance Assurance provider of Buyer toperform any obligation of such Performance Assurance provider under any document executed and delivered in connection herewith, then The FilamentFactory, in its sole discretion and after giving notice to Buyer, may do any one or more of the following: (a) suspend performance under the Agreement or any other agreement between Buyer and The FilamentFactory; (b) cancel the Agreement or any other agreement between Buyer and The FilamentFactory, whereby any and all obligations of Buyer, including payments or deliveries due, will, at the option of The FilamentFactory, become immediately due and payable or deliverable, as applicable; and/or (c) set-off against any amount that The FilamentFactory owes to Buyer under the Agreement or any other agreement between such parties. If The FilamentFactory suspends performance and withholds Product delivery as permitted above, The FilamentFactory may sell the Product to a third party and deduct from the proceeds of such sale the purchase price and all reasonable costs resulting from Buyer’s default as identified above, including, without limitation, all costs associated with the transportation (including demurrage and other vessel or shipping related charges), storage, and sale of the Product. The foregoing rights, which shall include, but not be limited to, specific performance, shall be cumulative and alternative and in addition to any other rights or remedies to which The FilamentFactory may be entitled at Law or in equity. In addition, The FilamentFactory shall be entitled to recover from Buyer all court costs, attorneys’ fees and expenses incurred by The FilamentFactory in connection with Buyer’s default, and interest on past due amounts at the rate specified in section 11 hereof. “Bankruptcy Event” means the occurrence of any of the following events with respect to Buyer or any Performance Assurance provider for Buyer: (i) filing of a petition or otherwise commencing, authorizing or acquiescing in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar Law; (ii) making of an assignment or any general arrangement for the benefit of creditors; (iii) having a bankruptcy petition filed against it and such petition is not withdrawn or dismissed within thirty (30) days after such filing; (iv) otherwise becoming bankrupt or insolvent (however evidenced); (v) having a liquidator, administrator, custodian, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets; or (vi) being generally unable to pay its debts as they fall due. 17.PRODUCTS MANUFACTURED ACCORDING TO BUYER’S SPECIFICATIONS 17.1 If the Agreement covers Products that must be manufactured especially for Buyer, and the Agreement is suspended, terminated or cancelled for any reason not attributable to The FilamentFactory, Buyer will take delivery of and make payment for such Products as have been completed and such Products as are in process on the date notice of suspension, termination or cancellation is received by The FilamentFactory. If Buyer for any reason cannot accept delivery of such Products, Buyer will make payment therefore as though delivery has been made and The FilamentFactory will store such Products for Buyer’s account and at Buyer’s expense. 18.EXCUSED PERFORMANCE 18.1 Force Majeure: The parties will be excused from their respective performances hereunder (except Buyer’s payment obligations) if performance is prevented or delayed by any acts of God, fire, explosion, flood, unusually severe or abnormal weather, riots or other civil disturbances, wars, acts of terrorism, actions of governments, voluntaryor involuntary compliance with any Law or request of any governmental authority, strikes, lockouts or other labor difficulties, failure of usual sources of raw materials or other sources of supply, failure of computer systems to operate properly, destruction or loss of electronic records or data, failure of mechanical or chemical function or equipment normally used by The FilamentFactory for manufacturing, handling or delivering of Product, or internally produced intermediates used in manufacture of any of the Product, plant shutdowns, any necessity to reduce operation of, equipment in order to protect the safety of people or to protect the environment, or any other circumstances beyond the reasonable control of the party seeking excuse from performance (“force majeure”). Promptly after a party determines a force majeure condition exists, that party will notify the other of the circumstances and consequences claimed and will use reasonable means to remove the cause(s) in question. Neither party will be obligated to settle any demands of, or disputes with, laborers; nor will Buyer be excused from paying monies due or complying with The FilamentFactory’s credit terms. Quantities affected by force majeure will be deleted from the Agreement, but the Agreement will otherwise continue in full force and effect for the term set forth in the Agreement. In periods of shortage of Product due to force majeure, The FilamentFactory may apportion any reduced quantity of Product among itself and its customers and affiliates in an equitable manner. The FilamentFactory shall not be required to acquire Product to replenish any shortfall in Product arising as a result of a force majeure. Should The FilamentFactory acquire any quantity of Product following a force majeure, The FilamentFactory may use or distribute, without apportioning, such Product at its sole discretion. Notwithstanding the aforementioned, any quantity of Product The FilamentFactory acquires and distributes to any non-affiliated customers shall be equitably apportioned to all of The FilamentFactory’s non-affiliated customers. Under no circumstances will The FilamentFactory be obligated to obtain Product for delivery hereunder except from its designated source(s) of supply, or if none is so designated by The FilamentFactory, from its usual, customary and/or most recent source(s) of supply. 18.2 Impracticability: The FilamentFactory may suspend performance and/or terminate the Agreement without liability to Buyer if, for any reason, The FilamentFactory shuts down the unit(s) in which, or the plant at which, Product is made or if a change in circumstances (whether foreseeable or unforeseeable) causes The FilamentFactory to incur a loss on a full cost basis at any time on the sale of Product hereunder. 18.3 Shortages: In case The FilamentFactory and Buyer have agreed on a qualified source of supply and for any reason not attributable to The FilamentFactory shortages occur in The FilamentFactory’s supply of the goods or products necessary to produce Product, The FilamentFactory may, without obligation to Buyer, obtain similar products from other sources and allocate all such products produced among its customers, its own requirements and the requirements of its divisions, subsidiaries and affiliates, in a manner and amount that is fair and reasonable. The FilamentFactory maydeduct the quantity not shipped because of this allocation from the quantity under the Agreement without liability to Buyer for failure to deliver. 19.CONFIDENTIALITY 19.1 Buyer agrees to treat as confidential all information supplied by The FilamentFactory, and not in the public domain, in connection with the Agreement, including, but not limited to: specifications, drawings, blueprints, and other technical, business or sales data, or statements of work (collectively referred to as the “Confidential Information”). Buyer agrees to (i) limit use of aforementioned Confidential Information only to the performance of the Agreement, and (ii) limit the disclosure of the Confidential Information to those of its employees necessary for the performance of the Agreement, unless prior written consent has been granted by The FilamentFactory to permit other use or disclosure. Buyer shall, upon request or upon expiration, termination or cancellation of the Agreement, promptly return all documents previously supplied, destroy any and all copies that were reproduced, and send written confirmation to The FilamentFactory certifying such destruction. 19.2 The confidentiality obligation shall not apply to such Confidential Information (i) which Buyer will prove that it had already been owned by Buyer or had become part of the public domain at the time when such Confidential Information was disclosed to Buyer; or (ii) later will be owned by Buyer or disclosed to Buyer without breachof this confidential obligation. 19.3 To the extent that Buyer is required according to mandatory law, or by an order of a court of competent jurisdiction or by public authorities which could not be avoided, to disclose Confirmation Information notwithstanding this section 19, Buyer shall inform the Performa of such requirement at the conclusion of this Agreement but not later than at the time when it becomes aware of such requirement or of the possibility thereof, and Buyer shall consult with The FilamentFactory about the disclosure of the Confidential Information. 19.4 The confidentiality obligation of this section shall apply accordingly for Confidential Information disclosed by Buyer to The FilamentFactory. 20.TRADEMARKS 20.1 Except as may be contained in a separate trademark license, the sale of Product (even if accompanied by documents using a trademark or trade name) does not convey a license, express or implied, to use any trademark or trade name and Buyer shall not use a trademark or trade name of The FilamentFactory in connection with the Product. 21.SUCCESSOR AND ASSIGNS 21.1 The Agreement binds and inures to the benefit of Buyer and The FilamentFactory and their respective successors and permitted assigns. Buyer may not assign any interest in, nordelegate any obligation under the Agreement, by operation of Law or otherwise, without The FilamentFactory’s prior written consent. Any assignment or attempted assignment in contravention of the foregoing shall be null and void, shall be considered a breach of the Agreement, and shall permit The FilamentFactory, in addition to any other rights that it may have, to terminate the Agreement. 22.GOVERNING LAW/VENUE FOR DISPUTES 22.1 Any dispute arising out of or in connection with this agreement shall be exclusively submitted to the courts of Frankfurt on the Main. 22.2 The Agreement shall be exclusively governed by German law to the exclusion of the Laws on conflict of laws and the UN convention on the International Sales of Goods (CISG). 23.AMENDMENT 23.1 No salesperson is authorized to bind The FilamentFactory; orders placed with a salesperson are not binding on The FilamentFactory until confirmed in writing by The FilamentFactory’s authorized employee. All technical advice, services and recommendations by The FilamentFactory are intended for use by persons having skill and know-how, and are accepted by Buyer at its own risk and The FilamentFactory assumes no responsibility for results obtained or damages incurred from their use. No statements or agreements, oral or written, not contained herein or in a future amendment hereto executed by both parties will vary or modify the terms hereof. Neither party shall claim any amendment, modification or release of any provisions hereof unless the same is in writing and such writing: (i) specifically refers to the Agreement; (ii) specifically identifies the term amended; and (iii) is signed by duly authorized representatives of The FilamentFactory and Buyer. Any waiver of the requirement of such written amendments must be in writing. 24.NOTICES 24.1 All notices, consents, communications or transmittals under the Agreement shall be in writing and shall be deemed received on the day of delivery if delivered by hand, by nationally recognized overnight courier or delivery service, or by facsimile (with written confirmation of the completed transmittal); or withinthree (3) business days if mailed by United States mail as certified or registered mail with return receipt, postage prepaid, addressed to the party to whom such notice is given at the address of such party stated in the Sales Agreement. Any waiver of the requirement of such written notice must be in writing. 25.INDEPENDENT CONTRACTORS 25.1 The FilamentFactory and Buyer are independent contractors only and are not partners, master/servant, principal/agent or involved herein as parties to any other similar legal relationship with respect to the transactions contemplated under the Agreement or otherwise, and no fiduciary, trust or advisor relationship, nor any other relationship, imposing vicarious liability shall exist between the parties under the Agreement or otherwise at Law. 26.NO THIRD PARTY BENEFICIARIES The Agreement is solely for the benefit of The FilamentFactory and Buyer and shall not be deemed to confer upon or give to any third party any right, claim, cause of action or interest herein. 27. DATA PROTECTION AND DATA SECURITY 27.1 The FilamentFactory is committed to the careful handling of the personal data of its buyers. Therefore, all data processing at FilamentFactory, in particular the collection, organization and use of personal data, takes place in accordance with the data protection regulations, in particular the Federal Data Protection Act and from its entry into force the Basic Data Protection Ordinance and the Federal Data Protection Act 2018. 27.2 The security of our IT systems is important to FilamentFactory. FilamentFactory has taken technical and organizational security precautions according to the state of the art in order to protect the purchaser’s data managed by FilamentFactory against accidental or intentional manipulation, loss, destruction or against access by unauthorized persons. FilamentFactory’s data processing and security measures are continuously adapted in line with technological developments. 28.MISCELLANEOUS 28.1 These Terms supersede any terms and conditions of previous dates, and if there is a conflict between these Terms and the specific provisions contained in the Sales Agreement, the specific provisions contained in such Sales Agreement shall control. Capitalized terms not defined herein shall have the meanings set forth in the Sales Agreement. The captions and section headings set forth in the Agreement are for convenience only and shall not be used in defining or construction of any of the terms and conditions of the Agreement. Waiver by either party of any breach of the terms and conditions contained herein will not be construed as a waiver of any other or continuing breach. The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of its other provisions. No course of dealing, course of performance, or usage of trade shall be considered in the interpretation or enforcement of the Agreement.