Terms & Conditions

General Terms and Conditions of Sale – ViscoTec America, Inc.

 

1. Applicability.

(a) These General Terms and Conditions of Sale (“GTCS”) apply exclusively to business transactions with customers of ViscoTec America, Inc. (“ViscoTec”, “we” or “us”) that are a business entity, sole proprietor, partnership, corporation, limited liability company, association, foundation, or other legal entity acting in a commercial or professional capacity (each, a “Customer”). These GTCS are not intended to apply to transactions with individual consumers.

(b) The GTCS apply in particular to contracts for the sale and/or delivery of goods (“Goods”), whether we manufacture the Goods ourselves or purchase them from suppliers. Unless otherwise agreed, the GTCS in the version valid at the time of the Customer’s order or, in any case, in the version last communicated to it in written or electronic form shall also apply as a master agreement for similar future contracts, without us having to refer to them again in each individual case.

(c) Our GTCS shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Customer (including any terms on any purchase order, supplier portal, or other Customer documentation) shall only become part of the contract if and to the extent expressly agreed by us in a writing signed by us as binding. This requirement of consent shall apply in any case, for example even if we, being aware of the Customer’s general terms and conditions of business and purchase, carry out the delivery to the Customer without reservation. Without limiting the foregoing, our acceptance of any Customer order and/or our performance is expressly conditioned on Customer’s assent to these GTCS, and we hereby reject any additional or different terms proposed by Customer. Acceptance of these GTCS is a prerequisite to the purchase of the Goods and shall operate as an acceptance of these GTCS.

(d) Individual agreements made with the Customer on a case-by-case basis (including collateral agreements, supplements and amendments) shall, in any case, take precedence over these GTCS only if (i) such agreements are made in writing and (ii) they expressly provide for such precedence.

(e) References to the applicability of statutory provisions are for clarification purposes only. Hence, even without such clarification, statutory provisions apply to the extent that they are not directly amended or expressly excluded in these GTCS.

 

2. Conclusion and Contents of Agreement.

(a) Our offers for Goods are subject to change and are non-binding. The same shall apply to elements of the offer that can be changed individually, such as prices and delivery times, and also where we have provided the Customer with catalogs, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents, including those provided in electronic form.

(b) Customer orders shall only be deemed accepted upon our written confirmation issued within 7 Business Days (meaning days other than Saturdays, Sundays, and federal public holidays in the United States) or our delivery of the Goods. Where we expressly indicate an offer to be binding within a specified acceptance period, an agreement shall become binding only upon the Customer’s express acceptance during such acceptance period. We are not bound by our offer after this period has expired. Thereupon, the Customer’s acceptance constitutes an offer which we may accept through our written confirmation or delivery of the Goods.

(c) Oral collateral agreements, representations, contract amendments or supplements to the written contract, the order confirmation or to these GTCS can only be effectively agreed by our managing directors or staff specifically authorized in writing to make such decisions. If such agreements are made between the Customer and non-authorized staff, they shall become binding only upon our written confirmation.

(d) Documents pertaining to the offer, such as illustrations, drawings, weights and dimensions, power consumption and performance data, are only approximate unless expressly designated as binding.

 

3. Scope of Delivery; Preparatory Work

(a) Our written order confirmation shall be binding for the scope of delivery. However, we reserve the right to make technical modifications that deviate from the order confirmation, provided that such modifications do not impair the suitability of the Goods for the intended purpose.

(b) Protective devices, safety devices and other devices based on statutory regulations or official requirements shall only be supplied to the extent that this has been expressly agreed. In any case, even where we have agreed to carry out installation and commissioning at a fixed price, delivery does specifically not include any preparatory work not directly associated with the installation and commissioning of the Goods, including, without limitation: earthworks and masonry work, lifting equipment, scaffolding, roof flashings, preparatory materials and installation work, connection of heating, gas, fresh water, sewage and electricity, installation of oil and gas burners, fire extinguishing and electrostatic systems, etc.

(c) The Customer shall be responsible for ensuring that preparatory work is provided in good time, including unpacking delivery items.

 

4. Delivery; Transfer of Risk and Receipt of Goods

(a) Delivery shall be FOB Seller’s facility (UCC shipping point), without loading.

(b) Consistent with the FOB Seller’s facility term set out in Section 4(a), risk of loss shall pass to the Customer at ViscoTec’s facility: in the event of collection by the Customer, upon the Goods being made available for collection; and in the event of dispatch, upon handover of the Goods to the carrier, forwarding agent, or other person or institution designated to carry out dispatch. This allocation of risk applies regardless of whether we have agreed to assume additional performance obligations, such as payment of dispatch costs or delivery and installation.

(c) If no special agreement has been made, dispatch of delivery items is carried out on behalf of the Customer, at its own expense and risk. Unless otherwise agreed, we are entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves.

(d) If so requested by the Customer, we shall insure the consignment against theft, breakage, transport, fire and water damage and other insurable risks on the Customer’s behalf and at the Customer’s expense.

(e) If dispatch is delayed due to circumstances for which we cannot be held responsible, the risk shall pass to the Customer upon receipt of our notification of readiness for dispatch. If the Customer culpably fails to take delivery of the Goods, this shall be deemed equivalent to their handover or acceptance.

 

5. Delivery period.

(a) The delivery period shall be agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period is approximately 4 weeks, which shall be an estimate only. Our delivery period shall only commence upon receipt of our order confirmation, however not prior to the provision of the documents, authorizations, releases to be procured by the Customer and receipt of an agreed payment, guarantee, etc. Compliance with the delivery period is subject to Customer’s prior fulfillment of its contractual obligations. The delivery period shall be deemed to have been met, if, by the time the delivery period expires, the delivery item has left the works or readiness for dispatch has been notified.

(b) Neither party shall be liable for any delay in, or failure of, performance (other than payment obligations) caused by a Force Majeure Event. “Force Majeure Event” means any event or circumstance beyond a party’s reasonable control that could not have been prevented or overcome by the exercise of reasonable diligence, including, without limitation: acts of God; fire, flood, earthquake, storm, hurricane, or other natural disaster; epidemic or pandemic; war, invasion, hostilities (whether or not war is declared), terrorist threats or acts, riot, or other civil unrest; action, inaction, or order of any governmental authority; national emergency; strikes, lockouts, or other labor disputes (whether or not involving our workforce); embargoes or blockades; or shortage of adequate power, energy, or raw materials. For the avoidance of doubt, economic hardship, changes in market conditions, or a subcontractor’s failure to perform shall not constitute a Force Majeure Event unless itself caused by a Force Majeure Event. We will use commercially reasonable efforts to provide written notice when a Force Majeure Event exists and when it ceases. The delivery period shall be extended by the duration of the Force Majeure Event plus such additional time as is reasonably necessary to resume performance. If a Force Majeure Event continues for a period exceeding sixty (60) days, either party may terminate the affected order or contract, in whole or in part, upon written notice to the other party, without liability to either party except for payment obligations accrued prior to the Force Majeure Event.

 

6. Default in delivery; Storage Costs.

(a) We shall be in default of delivery in the event the Goods have not left the works or we have not notified Customer of readiness for dispatch during the applicable delivery period, and such failure remains uncured for a period of thirty (30) days after written notice from Customer.

(b) If the Customer is in default in taking delivery, fails to co-operate or if our delivery is delayed for other reasons for which the Customer is responsible, the Customer shall be charged the costs incurred for storage, starting one month after notification of readiness for dispatch, but at least 1/2 percent of the invoice amount for each month if the Goods are stored in our works, but no more than 5% of the invoice amount in total if the Customer collects the Goods late and no more than 10 % of the invoice amount in the event of definitive failure to take delivery. Our right to prove more extensive damage and assert statutory claims (including but not limited to the compensation for extra expenses, reasonable compensation, termination) remains unaffected; however, the lump sum shall be credited towards further monetary claims. The Customer is entitled to prove that we have suffered no loss at all or only a significantly lower loss than the above lump sum. However, we shall be entitled to dispose of the delivery item upon unsuccessful expiry of a reasonable grace period set and then provide delivery to the Customer within a reasonably extended period. We will inform the Customer of this process as soon as reasonably practicable.

 

7. Prices and payment

(a) Prices are ex works, excluding packaging. The Customer shall be invoiced for the transportation costs actually incurred. Any customs duties, fees, taxes, or other public charges shall be borne by the Customer. Packaging material will only be taken back if the Customer pays the return costs. Applicable federal, state, or local sales taxes, use taxes, or other transaction taxes shall be added to the agreed prices at the then-applicable rate, unless the Customer provides a valid tax exemption certificate prior to invoicing.

(b) Our invoices are due for payment within thirty (30) days of the invoice date, without deduction, unless otherwise specified on the invoice. The Customer shall be in default upon expiry of the above payment period. During periods of default, interest will be charged on the outstanding amount at the lesser of (i) 1.5% per month or (ii) the maximum rate permitted by applicable law. We reserve the right to claim additional damages due to default in payment. Our right to claim interest from the due date remains unaffected.

(c) After confirming an order but prior to delivery of the Goods, we shall be entitled, at our discretion, to demand from the Customer concurrent performance (“pari passu”) or an appropriate security deposit if (i) we subsequently become aware that the Customer’s creditworthiness had already been in doubt at the time of entering into the agreement and these doubts have persisted until the time of delivery, or (ii) there is a material deterioration in the Customer’s creditworthiness after the time of entering into the agreement. If the Customer refuses to provide concurrent performance or the required security, we shall be entitled to terminate the contract in whole or in part. This also applies in the event of a statutory change of debtor if there are justified doubts about the creditworthiness of the new debtor. The Customer is not entitled to declare that it is setting off any of its claims against our claims unless the Customer’s counterclaims have been expressly recognized by us or have been declared final and absolute.

(d) In the event that any amount due hereunder is not paid when due, and we refer the matter to an attorney or collection agency for collection, the Customer shall be liable for and shall pay all reasonable costs of collection, including, without limitation, reasonable attorney’s fees, court costs, and other expenses incurred in connection with such collection efforts, to the maximum extent permitted by applicable law.

 

8. Retention of title; Current account; Warranties; Disclaimer of Warranties.

(a) The delivery item remains our property until all claims arising from the business relationship have been settled, including future claims and those arising from contracts concluded concurrently or at a later date, including any amounts currently or in the future owed by the Customer (“Reserved Goods”). To the extent permitted by applicable law, we retain a purchase money security interest in all Reserved Goods until payment in full, and the Customer authorizes us to file any financing statements (including UCC-1 filings) as may be necessary to perfect such security interest. In order to facilitate the perfection and maintenance of such security interest, the Customer shall, at the time of entering into any agreement subject to these GTCS and promptly upon our written request at any time thereafter, provide and confirm in writing: (i) its exact legal name as it appears in its organizational documents; (ii) its entity type (e.g., corporation, limited liability company, partnership, sole proprietorship, or other); (iii) its jurisdiction of organization or formation; and (iv) its registered address and principal place of business. The Customer shall promptly notify us in writing of any change to any of the foregoing information, including but not limited to any change of legal name, conversion to a different entity type, reincorporation or reorganization in a different jurisdiction, or change of registered address, in each case no later than ten (10) days prior to the effective date of such change, or as soon as reasonably practicable if prior notice is not possible.

(b) Until such time as ownership is transferred, the Customer shall treat the Reserved Goods with care and insure them at its own expense and for our benefit against fire and water damage and theft, at replacement value, and, upon request, provide proof that insurance has been taken out. Any claims against the insurer arising from this contract with regard to the Reserved Goods shall be deemed assigned to us. We herewith accept the assignment.

(c) Any maintenance and inspection work that becomes necessary must be carried out by the Customer in good time and at its own expense.

(d) The Customer is entitled to resell the Reserved Goods in the ordinary course of business as long as it is not in default of payment. In the event of resale and processing, the Customer shall reserve the right of ownership vis-à-vis the third party. The Customer hereby assigns to us any claims arising from such legal transaction(s) in the amount of our invoice value, including any ancillary rights, accruing from the resale against the buyer or third parties, regardless of whether Reserved Goods are resold without or after processing. We herewith accept the assignment. Such claims may be collected not only by us but also by the Customer until further notice of revocation which we may give any time. We undertake not to collect claims for as long as the Customer duly fulfils its payment obligations and its solvency remains intact. Upon request, the Customer must inform its buyers of the assignment, provide us with the information required to assert our rights against the buyers, and hand over the necessary documents. In this event, we are further entitled to revoke the Customer’s authorization to resell and process Reserved Goods.

(e) Processing and treatment of the Reserved Goods shall be carried out for us as the manufacturer, without any commitment on our part. Processed Goods are deemed to be Reserved Goods within the meaning of these terms and conditions. If Reserved Goods are processed or amalgamated with other items not belonging to us, our security interest shall attach to the resulting product or mass in proportion to the invoice value of the Reserved Goods to the other items used as of the time of processing or amalgamation, and such product or mass shall be deemed Reserved Goods. If our Goods are combined or amalgamated with other movable items to form a new thing and if the other item is to be regarded as the main item, the Customer hereby grants us a security interest in the resulting item on a pro-rata basis corresponding to the invoice value of the Reserved Goods. We hereby accept this grant. Furthermore, the same rules shall apply to the item created by processing, combining, and amalgamating as to the Reserved Goods. If the Reserved Goods are built into the property of a third party or otherwise incorporated, the Customer shall in each case assign to us in advance that portion of the Customer’s claim for compensation for work or services or for other legal reasons corresponding to the amount of the invoice value of the Reserved Goods. We hereby accept the assignment.

(f) THE WARRANTIES SET FORTH IN SECTION 9 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NO WARRANTY SHALL ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

(g) The Customer may neither pledge the delivery item nor assign it as security. The Customer must inform us as soon as reasonably practicable in the event of seizure, confiscation or other dispositions by third parties.

(h) In the event of a breach of important contractual duties, in particular in the event of default in payment, we shall be entitled to take back the Goods upon unsuccessful expiry of a reasonable grace period set or warning given. Taking back, requesting the return or seizure of Reserved Goods entails a cancellation of the contract and obliges the Customer to surrender the Reserved Goods. For this purpose, the Customer must irrevocably authorize us or one of our representatives to enter the premises where the Reserved Goods are located. Until they are handed over, the Customer shall store the Goods we own or co-own separately from other items, mark them as owned (co-owned) by us, refrain from disposing of them in any way and provide us with a list of the items owned (co-owned). After taking back the Goods, we are entitled to sell them on the open market or have them auctioned off without setting a prior deadline. The Reserved Goods are taken back at the proceeds realized less the liquidation costs, however no more than the agreed delivery prices. Further claims for damages, in particular loss of profit, remain unaffected.

 

9. Warranty.

(a) If a notification of defect is justified, we shall have the right, at our option, to repair the defect or provide a replacement free of charge within a reasonable period of time (“Cure”). If the type of Cure chosen by us is unreasonable for the Customer in the individual case, the Customer may reject it. Our right to refuse Cure remains unaffected if the statutory conditions under applicable law apply.

(b) Our warranty obligation is inapplicable in the event of unsuitable or improper use, and also in the event of defects attributable to faulty assembly or commissioning by the Customer or third parties not authorized by us. We likewise provide no warranty in cases of natural wear and tear, incorrect or negligent handling, in particular excessive stress, the use of unsuitable operating materials and replacement materials, and also in cases of changes to the filling material, its composition or its manufacturer’s source, or if the filling material is not free of air and gas bubbles in the material supply system. Warranty is also excluded in the event of defective construction not carried out by us, unsuitable building conditions, chemical, electrochemical or electrical influences, to the extent that they are not attributable to our fault. Claims by the Customer for reimbursement of expenses in the supply chain are excluded unless otherwise required by applicable law. Claims of the Customer for damages or reimbursement of wasted expenditure shall arise, even in the case of defective Goods, exclusively in accordance with the provisions of clause 11 of these GTCS.

(c) The basis for our liability for defects is, first and foremost, the mutual agreement on the specific quality and the presupposed use of the Goods (including accessories and instructions). Only those product descriptions and specifications that are expressly set forth in, or expressly incorporated by reference into, our written quotation and/or written order confirmation for the applicable order (the “Specifications”) shall constitute an agreement on the specific quality of the Goods. Any catalogs, brochures, technical documentation, drawings, website content, marketing materials, samples, demonstrations, or other public statements (collectively, “Public Statements”) are provided for informational purposes only and do not constitute Specifications and do not form part of the basis of the bargain unless expressly incorporated as Specifications in the written quotation/order confirmation. If no specific quality has been agreed, the question of whether a defect is present or not shall be judged by reference to whether the Goods are fit for the ordinary purposes for which such goods are used and conform to any applicable Specifications, consistent with the express terms of these GTCS. Public statements made by the manufacturer or on its behalf, in particular in advertising or on the labeling of the Goods, take precedence over statements made by other third parties. In the case of Goods with digital elements or other digital content, we shall only be obliged to provide and, if applicable, update the digital content to the extent that this expressly results from the Specifications as described above. In this respect, we accept no liability for Public Statements made by the manufacturer or other third parties.

(d) As a rule, we shall not be liable for defects which the Customer is aware of or acts grossly negligent in not being aware of when the contract is concluded.

(e) We have the right to make Cure dependent on the Customer paying the purchase price due. However, the Customer is entitled to retain a reasonable part of the purchase price in proportion to the defect. The Customer must give us the time and opportunity required for Cure owed, and in particular hand us over rejected Goods for inspection. In the event of a replacement delivery, the Customer must return the defective item to us as provided for by law. Cure neither includes disassembly, removal, or de-installation of the defective item, nor assembly, fitting or re-installation if these services were outside the scope of our original obligations. Only in case of an emergency putting at risk the operational safety and/or to prevent disproportionately severe damage, in which case we must be notified immediately, or if we are in default with respect to remedying the defect, shall the Customer have the right to remove the defect or have it removed by a specialist third party and claim reimbursement of the necessary costs incurred.

(f) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs (excluding assembly and disassembly costs), as provided for by law and these GTCS, if a defect actually exists. However, if a Customer’s request to rectify a defect proves to be unjustified, we may demand reimbursement of the costs incurred from the Customer if the Customer has recognized or negligently failed to recognize that the purchased item is not defective, but that the cause lies in its own sphere of responsibility.

(g) Modifications and/or maintenance work carried out improperly by the Customer or third parties on the Goods shall render our liability null and void for any consequences arising therefrom. We may refuse to rectify defects as long as the Customer itself violates contractual obligations or fails to fulfill them in breach of the contract. The Customer is obligated to provide construction-related services for the repair or replacement delivery to the same extent as for the main order. Replaced parts become our property.

(h) The Customer has the right to rescind the contract or to demand a reduction in the purchase price if attempts at Cure have failed after a reasonable number of attempts, or if we definitively refuse Cure despite the Customer granting us a reasonably long deadline. In the event of cancellation, we may demand reasonable compensation for use of the Goods by the Customer during the period they were in its possession. However, there is no right of cancellation in the event of an insignificant defect.

(i) Return Merchandise Authorization (“RMA”). Any return of Goods alleged to be defective is subject to the following procedure: (1) Written Notice. The Customer must provide ViscoTec with written notice of the alleged defect within ten (10) days of discovery, describing the nature and extent of the defect in reasonable detail. Failure to provide timely written notice shall constitute a waiver of any warranty claim with respect to such defect. (2) RMA Issuance. No Goods may be returned to ViscoTec without a Return Merchandise Authorization number (“RMA Number”) issued by ViscoTec in writing prior to shipment. ViscoTec shall not unreasonably withhold an RMA Number for claims that, on their face, fall within the scope of warranty coverage under this Section 9. All returned Goods must be securely packaged and clearly marked with the applicable RMA Number on the exterior of the packaging; Goods returned without a valid RMA Number will be refused and returned to the Customer at the Customer’s expense. (3) Return Freight. All costs of returning Goods to ViscoTec shall be borne by the Customer. If, upon inspection, ViscoTec confirms the existence of a defect covered by the warranty under this Section 9, ViscoTec shall reimburse reasonable, documented return freight costs. If ViscoTec determines that no covered defect exists, all freight costs shall remain the Customer’s sole responsibility and ViscoTec reserves the right to invoice the Customer for any reasonable inspection and re-shipping costs incurred. (4) Inspection. Upon receipt of authorized returned Goods, ViscoTec shall inspect the Goods to determine whether a defect exists and whether it falls within the scope of warranty coverage under this Section 9. ViscoTec’s inspection findings shall be determinative absent manifest error. Goods found not to be defective, or whose condition is attributable to causes excluded under Section 9(b), shall be returned to the Customer at the Customer’s expense, and no warranty obligations shall arise with respect to such Goods.

(j) The remedies available to Customer set forth in this Section 9 are Customer’s sole and exclusive remedies for any breach of warranty.

 

10. Statute of Limitation

Notwithstanding any otherwise applicable statute of limitations, the limitation period for any claims (including, without limitation, those based on breach of warranty, material defects and defects in title) is one (1) year from delivery, to the maximum extent permitted by applicable law, including the Uniform Commercial Code as adopted in Georgia. If an acceptance procedure has been agreed, the limitation period shall commence upon acceptance. Further special statutory provisions on limitations periods under applicable law remain unaffected. The above limitation periods also apply to contractual and non-contractual claims for damages of the Customer that are based on a defect in the Goods, unless application of the regular statutory limitation period would result in a shorter period in a specific case. Nothing herein limits any applicable limitation period under any product liability statute.

 

11. Liability; Limitation of Liability.

(a) Unless provided otherwise in these GTCS, including the following provisions, we shall be liable for non-adherence to contractual or non-contractual duties as provided for by the relevant statutory provisions.

(b) We shall be liable for damages – regardless of the legal basis – in the event of willful misconduct and gross negligence. In the event of ordinary negligence, we shall only be liable (i) for damage resulting from injury to life, limb, or health, or (ii) for damage based on breach of a material contractual duty (i.e., a duty the fulfillment of which is essential for the proper performance of the contract and which the other party reasonably relies upon); in that case, however, our liability shall be limited to compensation for foreseeable damage that may typically occur in transactions of this type. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VISCOTEC AMERICA, INC. BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR LOSS OF PROFITS, REVENUE, OR DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER TO US IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

(c) The limitations of liability set out in this clause shall also apply to third parties and in the event of breaches of duty by persons (including in their favor) whose fault we are responsible for as provided for by statutory provisions. The limitations of liability resulting from this clause shall not apply to the extent that we have fraudulently concealed a defect or have assumed a guarantee for a specific quality of the Goods. The same applies to claims by the Customer under applicable product liability statutes.

(d) The Customer may only withdraw from or terminate the contract due to a breach of duty unrelated to a defect if we are responsible for such breach of duty. Any free right of cancellation of the Customer (other than as expressly set forth in these GTCS or required by applicable law) is excluded. In all other respects, the statutory prerequisites and legal consequences under applicable law apply.

(e) In the event of a claim arising from liability for defects in accordance with Section 9 or due to a breach of duty in accordance with the above provisions in Section 11, contributory negligence on the part of the Customer shall be taken into account.

 

12. Contract Documents; Confidentiality.

We reserve the right of ownership and copyright to all contractual documents. The Customer may not reproduce the documents or make them accessible to third parties without our consent, even if we have not labelled the documents as confidential. This also applies to patentable inventions and utility models, etc., even if they have not been applied for yet. Reproduction of our products is only permitted upon written consent of the management. We undertake to make plans designated as confidential by the Customer accessible to third parties only with the Customer’s consent. All non-public, confidential, or proprietary information of ours, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by us to Customer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with the delivery of Goods, is confidential, solely for the use of performing the agreements between us and Customer, and may not be disclosed or copied unless authorized in advance by us in writing. Upon our request, Customer shall promptly return all documents and other materials received from us. We shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; (c) rightfully obtained by Customer on a non-confidential basis from a third party; or (d) required to be disclosed by applicable law, regulation, legal process, or order of a court or governmental authority of competent jurisdiction, provided that, to the extent permitted by law, Customer shall provide us with prompt prior written notice of such requirement, shall cooperate with us if we elect to seek a protective order or other appropriate relief, and shall disclose only that portion of the confidential information that is legally required to be disclosed.

 

13. Export Controls.

(a) The Customer may not sell, export, or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any Goods purchased from us that are subject to applicable U.S. export controls, trade restrictions, or sanctions administered by the U.S. Department of Commerce (Bureau of Industry and Security), the U.S. Department of Treasury (Office of Foreign Assets Control), or any other applicable U.S. government authority, including but not limited to the Export Administration Regulations (EAR) and any applicable sanctions programs.

(b) The Customer must do its best to ensure that the purpose of paragraph (a) is not frustrated by third parties in the commercial chain, in particular by potential resellers.

(c) The Customer must establish and maintain an adequate monitoring mechanism to detect third party behavior further down the chain, including the behavior of potential resellers, that defeats the purpose of paragraph (a).

(d) Any breach of paragraphs (a), (b) or (c) shall constitute a material breach of the contractual agreement entered into by us and the Customer. In the event of a breach by the Customer, we are entitled to take appropriate remedial action and Customer shall indemnify, defend and hold us harmless against all costs or other damage (in particular third-party claims, fines, immaterial damage) arising from the Customer’s non-compliance with paragraphs (a), (b) and (c), unless the Customer proves that it is not responsible for the breach.

(e) The Customer shall inform us as soon as reasonably practicable of any issues related to the application of paragraphs (a), (b) or (c). This duty to provide information also applies to all relevant activities of third parties that could frustrate the purpose of paragraph (a). The Customer shall provide us with the information relating to compliance with the obligations under paragraphs (a), (b) and (c) within two weeks of our simple request for this information.

(f) In addition to the Russia-specific restrictions in paragraphs (a) through (e) above, the Customer shall comply with all applicable U.S. and foreign export control laws, regulations, and governmental orders, including, without limitation: the Export Administration Regulations (“EAR”) administered by the U.S. Department of Commerce, Bureau of Industry and Security; the trade sanctions programs and regulations administered by the U.S. Department of the Treasury, Office of Foreign Assets Control; the International Traffic in Arms Regulations administered by the U.S. Department of State, Directorate of Defense Trade Controls, to the extent applicable; and all other applicable U.S. and foreign export and import controls (collectively, “Export Control Laws”). The Customer shall not export, re-export, transfer, divert, or otherwise make available any Goods, Software, technical data, or related services in violation of any Export Control Laws, without first obtaining all required licenses, authorizations, or other approvals from the applicable governmental authority. The Customer is solely responsible for determining whether any required export license or other governmental authorization is required in connection with its intended use and distribution of the Goods, and for obtaining such authorization prior to any export or re-export.

(g) The Customer represents and warrants that neither it nor, to its knowledge, any of its officers, directors, employees, agents, or distributors involved in the purchase or distribution of the Goods is: (i) a person or entity listed on any U.S. government restricted party list, including without limitation the Specially Designated Nationals and Blocked Persons List (“SDN List”), the Denied Persons List, the Unverified List, the Entity List, or the Debarred Parties List; (ii) located, organized, or resident in a country or territory subject to comprehensive U.S. sanctions (currently including, without limitation, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, and Luhansk regions of Ukraine, in addition to the Russian Federation as addressed in paragraphs (a) through (e) above); or (iii) fifty percent (50%) or more owned or otherwise controlled by any person, entity, country, or territory described in (i) or (ii). The Customer shall perform reasonable denied-party and sanctions screening on its customers and sub-distributors prior to any transaction involving the Goods.

(h) Any breach of this Section 13 shall constitute a material breach of the contract. Without limiting the indemnity in paragraph (d) above with respect to paragraphs (a) through (c), the Customer shall indemnify, defend, and hold us harmless against all costs, penalties, fines, losses, liabilities, and damages (including without limitation third-party claims and regulatory fines) arising out of or related to the Customer’s non-compliance with paragraphs (f) through (j) of this Section 13, unless the Customer proves that it is not responsible for the breach. This indemnity is in addition to, and not in limitation of, any other remedies available to us under these GTCS or applicable law.

(i) The Customer shall not use, sell, resell, or otherwise transfer any Goods for any purpose prohibited under applicable Export Control Laws, including without limitation any nuclear, biological, chemical, or radiological weapons end-use or weapons of mass destruction program, any ballistic missile program, or any military end-use in a destination subject to U.S. arms embargo, as specified under applicable law, including Part 744 of the EAR.

(j) The Customer shall maintain records sufficient to demonstrate its compliance with this Section 13 for a period of not less than five (5) years following each relevant export, re-export, or transfer transaction involving the Goods. Upon our reasonable request, the Customer shall make such records available for inspection. The Customer shall cooperate fully with any governmental audit, investigation, or inquiry relating to export compliance in connection with the Goods, and shall promptly notify us in writing if it becomes aware of any actual or suspected violation of applicable Export Control Laws in connection with the Goods or any downstream transfer thereof.

 

14. Place of Performance; Jurisdiction; Governing Law.

These GTCS and any contract entered into hereunder shall be governed by and construed in accordance with the laws of the State of Georgia, USA, without regard to its conflict of laws principles. The parties hereby irrevocably consent to the exclusive jurisdiction and venue of the state courts of Cobb County, Georgia, and the United States District Court for the Northern District of Georgia located in Fulton County, Georgia, for any dispute arising out of or relating to these GTCS or any contract entered into hereunder. The place of performance for deliveries shall be the location of ViscoTec America, Inc.’s principal place of business. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Should individual provisions of this contract be void, unenforceable, or become void or unenforceable once the contract has been concluded, this shall not affect the validity of the remaining provisions of the contract. The provision that is void or unenforceable shall be replaced or reformed by a provision that is valid and enforceable and whose effects come as close as possible to the economic objective that the parties had intended with the original provision.

 

15. Software. To the extent any Goods include, incorporate, or are delivered with software, firmware, or other digital content (collectively, “Software”), the following additional terms apply:

(a) License Grant. Subject to the terms of these GTCS and full payment of all applicable amounts, we hereby grant to the Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use the Software solely in object code form, solely as embedded in or bundled with the applicable Goods, and solely for the Customer’s internal business purposes. No title to or ownership of the Software is transferred to the Customer. All rights not expressly granted are reserved by us and our licensors.

(b) Restrictions. The Customer shall not, and shall not permit any third party to: (i) copy, modify, adapt, translate, or create derivative works of the Software; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software, except to the extent expressly permitted by applicable law notwithstanding this restriction; (iii) sublicense, sell, resell, transfer, assign, or otherwise commercially exploit or make available to any third party the Software; (iv) remove or alter any proprietary notices, labels, or marks on the Software; or (v) use the Software in any manner that violates applicable law or these GTCS.

(c) Third-Party and Open-Source Components. The Software may include third-party or open-source software components that are subject to separate license terms. Such components are licensed to the Customer under their respective terms, which shall take precedence over this Section 16 solely with respect to those components. Upon written request, we will provide reasonable information identifying material open-source components included in the Software.

(d) Support and Updates. Unless expressly agreed otherwise in a separate written agreement or order confirmation, we have no obligation to provide maintenance, technical support, patches, bug fixes, updates, upgrades, or new versions of the Software. Where support or updates are expressly agreed, they shall be provided only during the period and on the terms specified in such agreement, and any support obligation shall not extend beyond the agreed term. We do not warrant that the Software will be error-free, uninterrupted, or compatible with any hardware or software not expressly specified by us.

(e) Termination of License. The license granted under this Section 15 shall automatically terminate upon (i) any breach by the Customer of this Section 15 that remains uncured for ten (10) days after written notice, (ii) expiration or termination of the underlying contract for the applicable Goods, or (iii) the Customer’s failure to pay any amounts due. Upon termination, the Customer shall immediately cease all use of the Software and, upon our request, certify in writing that it has done so. Termination of the license does not relieve the Customer of any payment obligations accrued prior to termination.

(f) Export Compliance. The Customer acknowledges that the Software may be subject to U.S. export control laws and regulations, including the Export Administration Regulations, and agrees to comply with all applicable export and re-export restrictions.

 

16. Miscellaneous.

Customer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Customer without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under these GTCS. The relationship between the parties is that of independent contractors. Nothing contained in these GTCS shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Nothing in these GTCS, express or implied, confers on any other person, other than us and Customer, any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. If any term or provision of these GTCS is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these GTCS or invalidate or render unenforceable such term or provision in any other jurisdiction.

As of: May 2026 (US Version)