Terms & Conditions

General Terms and Conditions of Sale and Delivery

I. Scope of Application

(1) Our Terms and Conditions for the Sale of Goods (hereinafter: Terms) apply exclusively. Any conditional or different terms proposed by the buyer are objected to and will not be binding.

(2) If the buyer is a merchant, the provisions of these Terms are standard contract conditions for any contract in the course of an ongoing business relationship, even if they are not expressly named in a following transaction.

II. Scope of Contract

(1) The quantity, quality and description of and any specification for the goods shall be those set out in the seller’s confirmation in writing or in his quotation. If the quotation contains a commitmentperiod, out of time orders of the buyer shall not become binding for us.

(2) Additional paperwork accompanying the quotation (like plans, pictures, details of size and weight) are only approximate and cannot be seen as precise unless they are expressly confirmed as binding in writing by us. All estimations, drawings or other paperwork are subject to our copyrights and to our right of ownership. They are not allowed to be disclosed to third parties.

(3) Any modifications, alterations or amendments must be made in writing.

III. Prices and Terms of Payment

(1) All prices given by us are on an ex works basis (EXW ICC Incoterms 2020) including shipping charges, excluding packaging. The price is exclusive of any applicable value added tax, which the buyer shall be additionally liable to pay to us. On buyers’ written demand, we may purchase an insurance on behalf of the buyer at his cost covering theft, damages, transportation risks, fire, water and additional insurable risks.

(2) If not otherwise agreed in writing, payments must be effected by interbank payment transaction within 30 days of the date of our invoice without any cash discount. If the buyer fails to make any payment by the due date, we are entitled to charge interest on the amount unpaid at a rate which is customary in banking if we do not prove an additional damage in interest, or the buyer proves a lower damage in interest. Our right to claim for interest in the amount set out by law remains in any case.

(3) The minimum order must amount to at least € 150,- plus value added tax. For orders with a lower value we charge an additional amount of € 50,- for minor orders.

(4) The buyer must not set off with any counterclaims he may be entitled to, unless those claims have been legally confirmed.

(5) Our prices are calculated on the basis of the current cost situation at the date of contract. We reserve the right to increase the price of the goods, if the delivery takes place later than 4 months after the date of contract and in case of an increase of payroll or material costs within this period.

(6) If we accept cheques or bills of exchange in individual cases, the acceptance shall not be considered as fulfilment of the payment obligation. We do not warrant presentation in time. Date of payment will be the day of the payment of the bill. Any discount expenses are at the expense of the buyer.

IV. Delivery Time

(1) The fixed time of delivery starts with the receipt of our confirmation of the order with the buyer, but not earlier than on that day, we received all supporting documentation the buyer has to furnish to us (like plans, authorizations, approvals, etc.) and the receipt of a down payment which might be agreed on.

(2) The fixed time of delivery is met, if we notify the buyer within this period that the goods are ready for collection in our premises or, if agreed on some other place of delivery, by our transfer of the goods to the carrier.

(3) The fixed time of delivery extends reasonably in cases of force majeure such as strikes, lockouts, other industrial actions or trade disputes or if the delay or failure was due to any other cause beyond our reasonable control, as far as those causes have severely affected our production performance or transportation. The extension of the fixed time of delivery also applies in cases where our suppliers are subject to foresaid causes. We shall not be responsible for such causes, even if they occur when we are in default. We will inform the buyer immediately about the beginning and the end of said causes.

(4) If the transport is postponed due to reasons within the responsibility of the buyer, especially in cases where the buyer asks us to deliver the goods later than on the last day of the fixed time of delivery, we are entitled to claim for compensation for the storage costs of the goods. If the goods are stored in our premises, the buyer is liable for a compensation at an amount of 0.5% of the value of the goods during each month of the postponement. However, we are also entitled to dispose of the goods otherwise, if a notification of the buyer with a reasonable time limit for him to take over the delivery is unsuccessful. In this case, we can deliver the different kind of ordered goods within a reasonable new fixed time of delivery.

V. Transfer of Risk and Acceptance

(1) Risk of damage to or loss of the goods shall pass to the buyer, when we have tendered delivery of the goods, even if only parts of the ordered goods have been delivered or in case of additional services of ours (like transport, installation, etc.).

(2) If the delivery is delayed due to a postponement of the buyer, the risk of damage to or loss of the goods shall pass to the buyer when we notify the buyer that the goods are available for collection; we undertake to insure the goods for such a period on demand of the buyer and on his liability for the charges.

(3) Notwithstanding the buyer’s rights as set forth in par. VII., collected goods must be accepted even if they are defective.

(4) We may deliver parts of the ordered goods unless the partial delivery is of no value for the buyer.

VI. Retention of Title

(1) Notwithstanding delivery and the passing of risk of the goods, or any other provision of these Terms, title to the goods shall not pass to the buyer until we have received, in cash or clear funds, full payment of the price of the goods and all other goods agreed to be sold by us to the buyer for which payment is then due. This also applies to those cases in which some or all our invoices have been taken in an open account and the balance has been struck and accepted. If the buyer fails to comply with the provisions of these Terms, especially if he fails to make any payment by the due date, we are entitled to require the retransfer of the goods to us. This request, as well as any pledge of the goods by us, shall only be deemed as a revocation of the contract, if we declare such revocation expressly in writing. If third parties take steps to pledge or otherwise dispose of the goods, the buyer shall immediately notify us in writing.

(2) Until the title to the goods passes to the buyer, the buyer shall be entitled to resell or use the goods in the ordinary course of business, but shall account to us for the proceeds of sale or otherwise of the goods including insurance proceeds, and shall keep all such proceeds separate from any money or properties of the buyer and third parties, no matter if the goods have been reshaped before the resale by the buyer or not. The collection of the claims shall be up to the buyer, notwithstanding our own right to collect such claims. We shall not undertake to collect any claims on our own unless the buyer fails to make payments in his ordinary course of business. We are entitled to demand complete information on the proceeds and the buyer’s debtors as well as any additional material and paperwork. On our demand, the buyer must inform the debtors about the transfer of title to us. If the goods are resold to a third party in combination with other goods that we have no property of, the proceeds are transferred to us pro rata at the amount of our charge for the goods to the buyer.

(3) If the goods are processed or reshaped by the buyer, and if processing is done with goods that we have no title to, we become co-owner of the new goods pro rata at the value of the goods we have a title to. The same shall apply if our goods are completely reshaped and combined with other goods. The provisions for the goods we have a title to shall apply accordingly to the new goods.

(4) We undertake to release the exceeding part of the collateral if the value of the collateral held in favor of ours exceeds the value of the claims being secured at an amount of more than 10%.

VII. Liability for Material Defects

Subject to the conditions set out below we warrant that the goods will be free from defects in material and workmanship:

(1) We are under no liability for defects which occur after the transfer of risk according to par. V. We are under no liability for defects arising from willful damage, fair wear and tear, negligence, abnormal working conditions, failure to follow our instructions whether written or oral, misuse or alterations, repair or installation of the goods by third parties without our approval, chemical or electrochemical or electric influences, unsuitable operating materials, substitute materials, defective construction work, unsuitable building ground as long as we are not responsible for such causes. If the buyer raises unsubstantial claims from workmanship warranties, especially if defects without our responsibility arise, we are entitled to charge all the costs in connection with our services then rendered to the buyer.

(2) If the buyer is a merchant, he shall notify us of the defect in writing according to the following provisions; if he fails do so, he shall forfeit his rights out of the warranties:

a. apparent defects need to be notified without delay after the receipt of the goods, or if installation or assembly by us or a test is agreed on, without delay after that installation, assembly, or test, but in no case later than within 6 months (if used in shift operation within 3 months),

b. hidden defects need to be notified without delay after their discovery.

(3) If the defect is under our liability, in case of a contract for services of our choice, in case of a sales contract of the buyer’s choice, we undertake to repair the goods or to replace the goods free of charge (hereinafter: remedy). We are entitled to refuse a remedy chosen by the buyer, if this involves an unreasonable cost effect. In case of a repair of the goods, we undertake to bear all costs with respect to such repair, especially costs for transportation, travel expenses, wages and material. If upon instructions of the buyer the goods are transferred to other premises after the installation, then the buyer shall be liable for the costs of such delivery.

(4) If the repair of the goods fails repeatedly, or if we do not agree or are unable to repair the goods or replace them free of charge, or if the remedy would extend a reasonable time period, the buyer is entitled to revoke the contract or to claim for a reduction of price. In case of a service contract, the buyer may, if his safety at work is endangered or if he is threatened by an unreasonable damage, repair the goods on his own or have them repaired by a third party and hold us liable for said reasonable costs. The buyer’s obligation to take recourse to us before his own or third-party repair of the goods remains untouched.

(5) We cannot be held liable for compensation of damages due to defects, as far as

a. we have not expressively warranted for a certain specification of the goods or if there is no material breach of contract by us,

b. the damage has not arisen from a grossly negligent or intentional breach of the contract on the part of ours or

c. in case a damage of life or personal health has not arisen from a negligent breach of the contract on our part.

In cases of lit. a. and b. – under the condition that the damage has been caused by an employed person in the performance of our obligation and for whom we are vicariously liable – our liability is limited to the amount of the foreseeable damage. A damage claim based on the product liability law remains untouched in any case.

(6) The limitation period for claims for defects of the Purchaser shall be two years if the provisions on the sale of consumer goods apply, otherwise one year from the statutory commencement of the limitation period.

VIII. Liability for Defects in Title

(1) We shall be under no liability, if the goods or their use or resale infringe the patent, copyright, design, trademark or other industrial or intellectual property rights of any other person, if the goods are based on a drawing or design of the buyer. In all other cases, our liability is limited according to the provisions of par. VII., subpar. 5. As far as we are liable according to these provisions, we undertake to indemnify the buyer against all loss, damages, costs and expenses incurred by the buyer due to a third-party claim of the infringement of the patent, copyright, design, trademark or other industrial or intellectual property rights by the goods. Additional condition of this indemnification shall be that

a. the buyer transfers the rights to control any proceedings or negotiations to us as far as permitted by law and assists us in any reasonable way for the purpose of any such proceedings or negotiations by furnishing us with all necessary information and material (we shall be liable for the costs of the buyer for said assistance) and

b. the claim is only based on the breach of our contractual obligations, especially the design and construction of our goods and not on a misuse of the goods which is not in our responsibility or on the use in combination with other goods.

(2) We are entitled to release ourselves from our obligations according to subpar. 1. by either:

a. purchasing the licenses for the patent, copyright, design, trademarks or other industrial or intellectual property rights which might be infringed or

b. delivery of varied goods or parts of the goods, which would through the substitution of those parts that might infringe the patent, copyright, design, trademarks or other industrial or intellectual property rights avoid the infringement through the initially delivered goods.

IX. Limitation of Liability for Other Breaches of Duty

As far as other damage claims are raised (impossibility of performance, breach of an obligation other than delay or impossibility, negligence in the course of contracting and tort), the provisions for the limitation of our liability as set out in par. VII. subpar. 5 apply accordingly.

X. Omission or Adjustment of Performance Obligations

Notwithstanding the limitations of our liability according to par. IV. subpar. 4., VII. subpar. 5., VIII. subpar. 1, second sentence and IX., we are entitled – as far as the preconditions are fulfilled - to claim for an adjustment of the contract or to even revoke the contract in cases of the right to withhold performance according to par. 275 subpar. 2 German Civil Code due to factual impossibility or in cases of the frustration of contract within the meaning of par. 313 German Civil Code (especially in ongoing cases of par. IV. subpar. 3.).

XI. No-Russia-clause

(1) The [Importer/Buyer] shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any goods supplied under or in connection with this Agreement that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014.

(2) The [Importer/Buyer] shall undertake its best efforts to ensure that the purpose of paragraph (1) is not frustrated by any third parties further down the commercial chain, including by possible resellers.

(3) The [Importer/Buyer] shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of paragraph (1).

(4) Any violation of paragraphs (1), (2) or (3) shall constitute a material breach of an essential element of this Agreement, and the [Exporter/Seller] shall be entitled to seek appropriate remedies, including, but not limited to:

a. termination of this Agreement; and

b. a penalty of 50 % of the total value of this Agreement or price of the goods exported, whichever is higher.

(5) The [Importer/Buyer] shall immediately inform the [Exporter/Seller] about any problems in applying paragraphs (1), (2) or (3), including any relevant activities by third parties that could frustrate the purpose of paragraph (1). The [Importer/Buyer] shall make available to the [Exporter/Seller] information concerning compliance with the obligations under paragraph (1), (2) and (3) within two weeks of the simple request of such information.

XII. Choice of Law and Place of Jurisdiction

All contractual relations between the buyer and us shall be governed by German law, whereas the United Nations Convention on Contracts for the International Sales of Goods adopted on April 11, 1980 shall not apply. Each party agrees to submit to the jurisdiction of the courts having jurisdiction (including summary bill and cheque enforcement procedures) for our principal place of business or the place of business of our subsidiary, which is in charge for the delivery of the goods. We also have the right to bring a claim before a court at the buyer´s principal place of business.

Status: 22.07.2024

General Terms and Conditions of Sale and Delivery

These General Terms and Conditions of Sale and Delivery (these "Terms") are applicable to all U.S. customers (the
"Customers" and each, individually, a "Customer") of AP&S US Inc, a Delaware corporation ("the Company").

1. terms and conditions of sale:

1.1.
Company shall sell and deliver to Customer and Customer shall purchase and accept from Company the products (herein, the "Products") described on or in any confirmed order, agreement or quotation, or any combination thereof (the "Order"), pursuant to the terms and conditions of the Order and those specified below, which taken together shall constitute the entire agreement between Company and Customer regarding the Products (herein, this "Agreement").

1.2.
No other terms or conditions shall be of any effect unless otherwise specifically agreed to by Company in a separate written agreement duly signed by an officer of Company. Customer will be deemed to have assented to all Terms if any part of the Products is accepted by Customer. If Customer finds any Term not acceptable, Customer must so notify Company at once and must reject the Products delivered under this Agreement. Any additional or different terms or conditions contained in Customer's order or response hereto shall be deemed objected to by Company and shall be of no effect. No general terms and conditions of a Customer shall at any time form a part of the content of any contract or agreement between the Customer and the Company, even if they are not further expressly rejected by the Company.

1.3.
Unless otherwise agreed in writing, all quotations for Products are valid for a period of two (2) months from the date of issue. Subsequent modifications in quantity or quality, if such are requested by Customer, generally will cause a modification of the quoted price. Drawings and samples enclosed with any quotation remain the property of Company. All drawings and samples shall be treated confidentially by Customer and must be returned to Company after usage.

1.4.
No Order is binding upon the Company until the earlier of acceptance of the Order in writing or the delivery of the Products to the Customer. Notwithstanding any prior acceptance of an Order by Company, Company shall have no obligation if the Customer is in breach of any of its obligations hereunder, or any other agreement between the Customer and Company, at the time Company's performance was due.

1.5.
All verbal agreements concerning the terms of any Order, including agreements made by telephone, shall have no force and effect unless and until acknowledged by the Company in writing.

1.6.
Customer shall bear all costs associated with the cancellation or modification of the Order, which will be calculated based on the time between the Company's receipt of the cancellation and the purchase order confirmation. The following cancellation fees apply specifically to the sale of equipment:

• cancellation 4 weeks after order = cancellation fee of 25% of project volume
• cancellation 12 weeks after order = cancellation fee of 50% of project volume
• cancellation 16 weeks after order = cancellation fee of 75% of project volume
• cancellation 10 weeks before delivery (pursuant to Section 4.1) = cancellation fee of 100% of project volume

2. prices:

2.1.
All price quotations are FCA Company's parent facility at Obere Wiesen 9, 78166 Donaueschingen, Germany (per ICC Incoterms 2020) and do not include costs for packaging, postage or other freight charges, insurance or taxes, if any.

2.2.
Products' prices will be governed by the Company's current prices in effect from time to time or by special price quotes made to customer in writing. A price list available on request.

2.3.
Prices quoted in a currency other than Unites States Dollars are based on the official exchange rate on the date of the quote. Prices will be invoiced on the basis of the currency exchange rate in effect on the date of confirmation of any Order.

2.4.
If the U.S. Producer Price Index (PPI) for machinery and equipment, covering all materials (material rate ~65%), reflects an increase of more than ten percent (10%) from the day of order to the day of delivery, this cost increase will be passed down to the customer with a factor of 0.5.

3. terms of payment:

3.1.
Unless otherwise agreed to in writing by the Company, Customer shall pay the purchase price for spare parts and upgrades within thirty (30) days upon delivery according to Section 4.1.

3.2.
For orders with a value below on hundred fifty U.S. Dollars ($150.00), excluding any applicable taxes, we charge an additional handling fee of Fifty U.S. Dollars ($50.00).

3.3.
Company may without notice change or withdraw extensions of credit at any time. If Company ceases to extend credit terms before shipment, Customer's sole remedy shall be cancellation of its order. If Customer does not receive notice before shipment, its sole remedy shall be rejection of the Products immediately upon delivery.

3.4.
If the Customer fails to make payment on or before the date required, Customer shall pay interest to the Company at the rate of one point five percent (1.5%) per month or such lesser amount permitted by law. The specification or charging of interest shall not be deemed an agreement to extend credit.

3.5.
If Customer fails to observe these Terms or the terms of any other agreements between Company and Customer, or if Customer becomes insolvent, all balances then due and owing to the Company shall become due immediately, notwithstanding any agreed upon payment periods. Any Orders that have been confirmed by the Company but not yet filled shall in such cases become cancellable at the sole discretion of Company.

3.6.
Customer does not enjoy a right of set-off under any circumstances.

3.7.
Standard payment terms if no other individual agreement closed between the companies:

• 50 % down payment within 14 days of order confirmation
• 40 % within 14 days of delivery according to Section 4.1
• 10 % within 14 days of installation

4.Delivery Terms:

4.1.
Except as otherwise specified in this Agreement, the Products shall be sold and delivered FCA Works (per ICC Incoterms 2020) Company's parent facility at Obere Wiesen 9, 78166 Donaueschingen, Germany. Title to and risk of loss for the Products shall pass to Customer upon delivery thereof to any common carrier at such facility.

4.2.
Any agreed Delivery Period commences on the day on which any Order and accompanying documents, such as drawings, have been clarified by the Company, but in any event no earlier than the written acceptance of any Order by the Company. Sales which extend over a certain period of time, and where quantities have not been fixed in advance, shall be subject to separate agreements concerning the quantity and delivery period regarding each separate sales transaction and/or request for delivery made by a Customer. Delivery Periods determine the date of dispatch FCA. All delivery dates are approximate; time shall not be of the essence.

4.3.
Customer will be billed for and shall pay all freight, transportation, shipping, insurance and handling charges, duties, and taxes, including any applicable VAT, sales, personal property, ad valorem, and other taxes, duties, levies or charges imposed by any governmental authority, irrespective of whether applicable law makes such items the responsibility of the buyer or seller, but excluding any taxes payable by Company with respect to its net income.

4.4.
Customer, shall, subject to Company's available facilities at the shipping point, determine the type of transportation and shall notify Company thereof at the time Customer places each Order. If Customer shall fail to so notify Company, Company or its agent may select any commercial air, ship, motor or rail carrier or any combination thereof for the transportation of the Products. Company will make deliveries of the Products in the quantities ordered as near as reasonably possible to Customer's requested delivery dates.

4.5.
Company shall use its reasonable efforts to deliver the Products to Customer by the agreed upon date. However, except in cases of Company's willful misconduct or gross negligence, Company shall not be liable to Customer for delays in delivery or damage to Products while in transit, irrespective of whether Company or Customer determined the mode of transportation.

4.6.
In cases of deliveries of Products manufactured to Customer's specification ("Special Orders"), Company reserves the right to rely on the technical specifications provided by Customer.

4.7.
Unless otherwise agreed to in writing, all tools, models, plans, blueprints or other devices and/or documents used and/or developed by Company (the "Tools") in order to fulfill any Order or Special Order are the property of the Company, even if the cost of development and/or manufacturing of such tools, models, plans, blueprints or other devices and/or documents was wholly or partially borne by the Customer.

4.8.
If the transport is postponed due to reasons within the responsibility of the Customer, especially in cases where the Customer asks the Company to deliver the goods later than on the last day of the fixed time of delivery, the Company is entitled to claim for compensation for the storage costs of the goods. If the goods are stored in Company's or Company's parent's premises, the Customer is liable for a compensation at an amount of zero point five percent (0.5%) of the value of the goods during each month of the postponement. However, we are also entitled to dispose of the goods otherwise, if a notification of the Customer with a reasonable time limit for him to take over the delivery is unsuccessful. In this case, the Company may deliver goods other than the goods originally destined for delivery within a reasonable new fixed time of delivery.

5. security interest:

5.1.
As security for the timely payment and performance of all Customer's indebtedness to Company, Customer hereby grants to Lender a first priority security interest in the Products following delivery thereof to Customer ("Collateral"). Such Interest shall remain in force until payment in full of the entire purchase price for the Products and any other amounts due to the Company by Customer.

5.2.
If so requested by Company, the Customer shall deliver to Company, in form and substance satisfactory to Company, and duly executed as required by Company, financing statements and other security interest perfection documentation in form and substance satisfactory to Company, duly filed under the UCC in all jurisdictions as may be necessary, or in Company's opinion, desirable, to perfect Company's security interest and lien in the Collateral, in order to establish, perfect, preserve and protect Company's security interest as a legal, valid and enforceable security interest and lien, and all property or documents of title, in cases in which possession is required for the perfection of Company's security interest.

6 Limitation of Liability:

6.1. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF EARNINGS, PROFITS, REVENUE, GOODWILL OR USE, INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION BASED UPON EQUITY, CONTRACT, TORT, STRICT LIABILITY, OR IMPOSED BY CASE LAW OR STATUTE, OR OTHERWISE, EVEN IF PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.2. NOTWITHSTANDING THE TERMS AND CONDITIONS SET FORTH IN SECTION 6.1., COMPANY'S LIABILITY - WHETHER BASED UPON CONTRACT, TORT, EQUITY, NEGLIGENCE OR ANY OTHER LEGAL CONCEPT - SHALL IN NO EVENT EXCEED THE VALUE OF CUSTOMER'S ORDER TO WHICH THE DAMAGES ARE PERTAINING TO, AS DESCRIBED ON THE ORDER FORM. IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN COMPANY AND CUSTOMER IN AN EQUITABLE MANNER, THAT COMPANY'S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.

6.3. IN JURISDICTIONS THAT LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE, COUNTRY OR OTHER JURISDICTION.

7. force majeure:

7.1.
Company shall not be liable to Customer or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.

7.2.
Customer shall not be liable to Company or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.

7.3.
When the event operating to excuse performance by either party shall cease, this Agreement shall continue in full force until all deliveries have been completed.

8. miscellaneous terms:

8.1.
Any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be settled exclusively by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association ("AAA"). The award shall be final and binding. Judgment upon the award rendered by the arbitrator or the arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be held in New York, New York, shall be conducted in the English language, and shall be conducted (i) if the amount in dispute is less than two hundred fifty thousand U.S. Dollars ($250,000), before a single arbitrator mutually agreeable to Company and Customer, or if no agreement can be reached, then selected by the AAA, or (ii) of the amount in dispute is two hundred fifty thousand U.S. Dollars ($250,000) or more, before three (3) arbitrators. The arbitrator(s) shall make detailed findings of fact and law in writing in support of his, her or their decision, and shall award reimbursement of attorney's fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. In addition, the losing party shall reimburse the prevailing party for reasonable attorneys' fees and disbursements, the costs of the arbitration (including but not limited to the fees and expenses of the arbitrator and expert witnesses) and the costs incurred by the prevailing party in successfully seeking any preliminary equitable relief or judicially enforcing any arbitration award.

8.2.
This Agreement shall be governed by and construed in accordance with the law of the State of New York, without giving effect to principles of conflict of laws.

8.3.
If any provision contained in this Agreement is held to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties' respective rights and obligations hereunder.

8.4.
In the event of a violation or threatened violation of Company's proprietary rights, Company shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Company would suffer irreparable harm.

8.5.
The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, employment or agency relationship between the parties.
This Agreement, including any Schedules attached hereto, contains the entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between them, whether oral or written, of any nature whatsoever with respect to the subject matter hereof. This Agreement is binding upon the parties hereto, their successors and permitted assigns.