Dornier MedTech Laser GmbH – General Terms and Conditions of Purchase

Status: 21 May 2013

1. General Terms and Conditions of Purchase
1.1 These General Terms and Conditions (“CONDITIONS”) by Dornier MedTech Laser GmbH, having its place of business at Argelsrieder Feld 7, D-82234 Wessling, ( “DMTL”) shall apply solely to business entities within the meaning of sec. 14 BGB (“German Civil Code”) and to legal entities under public law and special funds under public law [öffentlich-rechtliche Sondervermögen].
1.2 These CONDITIONS shall apply exclusively and to all future transactions between DMTL and SUPPLIER even where not expressly included in future transactions; any terms and conditions of the SUPPLIER conflicting with or deviating from these CONDITIONS shall not be acknowledged except where DMTL has expressly consented in writing to their application. These CONDITIONS shall also apply where DMTL orders or pays products or services without reservation, with knowledge of SUPPLIER’S terms and conditions which conflict with or deviate from these CONDITIONS.

2. Offer and Formation of Contract
2.1 The order and the acceptance as well as any modification of or supplement thereto shall be valid only if in writing.
2.2 Unless expressly stated otherwise in DMTL’s order, a binding contract is only concluded where SUPPLIER accepts such order within five (5) WORKING DAYS after the date such order has been received by SUPPLIER. WORKING DAY shall mean any day on which banks are opened at DMTL’s place of business.
2.3 DMTL reserves its rights of ownership and copyright to its proposal, order and contracting documents (including illustrations, drawings, technical specifications, calculations and other documentation), irrespective of whether the documents in question are in electronic or physical form. Additionally, DMTL’s Standard Terms of Confidentiality apply.

3. Date of Delivery and Place of Performance
3.1 The agreed date of delivery and/or the agreed period of delivery shall be binding. No advance or partial delivery or delivery of more than the agreed quantities shall be permissible, except where expressly pre-approved in writing by DMTL. In the case of delivery without mounting or installation, receipt of the product by DMTL as stated in the order shall be decisive in terms of observance of the time limit. In the case of delivery with installation or mounting and in the case of services, provision thereof in a manner ready for acceptance shall be decisive in terms of observance of the time limit as stated in the order.
3.2 Each party’s obligations to deliver, render or accept products or services are suspended for the duration of force majeure. Each party shall inform the other of such event in its sphere and its expected duration. DMTL shall be entitled to cancel orders placed with SUPPLIER in case of force majeur in order to prevent impending disproportionately great damage to DMTL or its customers. Similarly, each party shall inform the other of any circumstances which may endanger performance of the relevant duties entered into by the respective party.
3.3 In the case of delay or default of SUPPLIER not attributable to force majeure, DMTL shall be entitled to claim payment of an amount equal to 0.5 % of the order value of products or services delayed for each week or part of a week, but not more than 5 % of the order value per incident. DMTL’s rights to claim further damages based on statutory provisions remains unaffected.
3.4 Place of performance for SUPPLIER’S deliveries or services shall be DDP (INCOTERMS 2010) at DMTL’s registered offices in Wessling, Germany.

4. Shipment and Pricing
4.1 Shipping documents such as delivery notes and packing lists must accompany the shipments. The order numbers and other information contained in the DMTL order must be indicated in all documents. Any additional costs incurred by DMTL as a result of Supplier’s culpable failure to comply with the preceding provisons shall be borne by SUPPLIER.
4.2 The prices are net-prices plus VAT, where applicable and shall apply free place of performance. Packing shall be included in the price except where SUPPLIER charges a deposit for returnable packaging. In such case deposited returnable packaging shall be invoiced separately and counted against returned deposited returnable packaging. DMTL may return any deposited returnable packaging at the end of the business relationship in return for the deposit provided such returnable packaging is not substantially damaged.
4.3 Where no returnable packaging is used, SUPPLIER shall only use packaging material that can be disposed of using the public recycling systems in Germany and shall use licensing symbols of such recycling systems unless instructed otherwise by DMTL. Where plastic packaging is used, this material shall be marked in conformity with DIN 6120.

5. Invoice and Payment, Prohibition of Assignment
5.1 Invoices shall be made in Euro, issued in duplicate and shall, for each delivery or incident, contain order number, quantity, exact definition of the products or service, manner of dispatch and VAT identification number. Any delay and cost caused by missing details shall be at the SUPPLIER’S expense and shall extend the date of payment accordingly.
5.2 Payment shall be made following acceptance and/or delivery and after receipt of the invoice in accordance with Sec. 5.1 within fourteen (14) days with 3% discount or within sixty (60) days net. Discount may be deducted also in case of setoff or retention because of defects.
5.3 SUPPLIER shall not assign its claim against DMTL or to have it collected by third parties without the prior written consent of DMTL. Section 354 a) HGB (“German Commercial Code”) shall remain unaffected. SUPPLIER shall provide the products free of any third party liens, rights and encumbrances.

6. Warranty
6.1 SUPPLIER warrants that its products are in accordance with the specifications agreed with DMTL or – in the absence of such – the standard quality required by DMTL for the intended use SUPPLIER has been previously informed about. SUPPLIER will check the products prior to shipment.
6.2 The warranty period shall be two years from delivery to DMTL’s customer, but no later than twenty-seven (27) months after delivery to DMTL. As far as the subject of the contract are deliveries with installation or mounting or services, the warranty period shall be two years after signature of report of acceptance or, where mere services without a report of acceptance is rendered, after rendering of such services.
6.3 With respect to Sec. 377 German Commercial Code, DMTL shall examine the products immediately after delivery as far as this is reasonably possible according to an ordinary business procedure. Recognizable defects and deviations in quantity have to be notified by DMTL in written form within a period of ten (10) WORKING DAYS after receipt of the products.
If a defect, which has not been recognizable at the time of examination for DMTL, is found at a later time, DMTL shall inform SUPPLIER in writing within ten (10) WORKING DAYS after the later discovery of the defect.
If the defect is recognizable only at a time at which the product is already at DMTL’s customer, the information is prompt, if DMTL’s customer informs DMTL within ten (10) WORKING DAYS after discovery of the defect and DMTL sends this information to SUPPLIER without delay.
Hidden defects entitle DMTL to demand a compensation for futile and proven expenditures (i. e. labour costs and material).
6.4 In the case of defects, DMTL may choose if the right to claim removal of defects shall be effected by repair or replacement. SUPPLIER is entitled to refuse the kind of removal of defects (repair or replacement) chosen by DMTL, if such removal is possible only for SUPPLIER with excessively high costs and if the other kind of removal of defects (repair or replacement) is without significant disadvantages for DMTL. SUPPLIER has to bear the necessary expenses for removal of defect, especially expenses for transport, travelling, work and material. DMTL is entitled to return defective products to SUPPLIER at SUPPLIER’S cost. Any such defective products thus returned shall remain DMTL’s unencumbered property until replacement or refund is provided by SUPPLIER for such defective products.
Where SUPPLIER refuses or fails to remove the defect within a reasonable period set by DMTL, DMTL shall be entitled to remove the defect itself or by third parties. DMTL may claim compensation for its necessary expenditures from the SUPPLIER.
6.5 DMTL may remove or may have removed the defect, without fixing a specific period, at SUPPLIER’S cost and expense if
(a) delivery has been delayed and DMTL has an interest in immediate removal of the defect in order to avoid delay or default on its own part;
(b) minor defects are involved;
(c) it is necessary to immediately remove the defect in order to prevent impending disproportionately great damage.
Where removal of defects by SUPPLIER is without effect, DMTL may choose reduction in price (“Minderung”) or rescission of the contract (“Rücktritt”) and damages in place of delivery according to
Dornier MedTech Laser GmbH 2
§ 437 German Civil Code. Instead of damages DMTL may also claim reimbursement of expenses, which have been in vain. In case of insignificant breach of duty, especially in case of insignificant defects, DMTL has no right to rescission.
6.6 DMTL is may assign its claims against the SUPPLIER, existing or arising in the future, in total or partly to entities of the DMTL GROUP.
SUPPLIER hereby assigns its warranty claims against its sub-contractors regarding the products and services supplied to DMTL as far as these exist or will arise in the future. This assignment is subject to the condition precedent that SUPPLIER does not fulfil DMTL’s warranty claims. DMTL accepts this assignment. Any such assignment leaves DMTL’s warranty claims against SUPPLIER unaffected. SUPPLIER shall reasonably assist DMTL in exerting such assigned rights upon DMTL’s request.

7. Duty to Inform and Duty of Care
7.1 Where DMTL notified SUPPLIER of the purpose of use of the product or service or such purpose of use is noticeable by SUPPLIER without express information, SUPPLIER shall immediately notify DMTL if the delivery or service of supplier may not comply with such purpose of use and if this is recognizable for SUPPLIER.
7.2 SUPPLIER shall immediately notify DMTL in writing of any changes in the manner of composition of the processed material or the constructional design of products or material changes to any tools. Any such changes shall be SUPPLIER’S sole responsibility and shall require DMTL’s prior written consent unless any such changes do not materially alter the product.
7.3 SUPPLIER shall ensure that the products and services will comply with all legal requirements applicable in the Federal Republic of Germany.

8. Items Made Available
8.1 Items made available by DMTL to the SUPPLIER or paid for by DMTL shall remain the property of DMTL. SUPPLIER shall (i) use them solely for products and services ordered by DMTL (ii) clearly mark them as DMTL’s property, (iii) keep them separate from other goods not belonging to DMTL, (iv) inform DMTL immediately where third parties claim rights in and to the items and (v) inform DMTL immediately of any material deterioration of the items.
8.2 SUPPLIER shall, at its own cost and expense, perform any necessary maintenance and inspection work, insure the items sufficiently and evidence such insurance to DMTL upon DMTL’s written request. SUPPLIER shall return any such items immediately to DMTL at the end of the contractual relationship and / or at DMTL’s written request. SUPPLIER’S right to retention is excluded.
8.3 If and to the extent that SUPPLIER processes or transforms items made available by DMTL into a new movable good, DMTL shall be deemed to be the producer. The process or transformation is carried out on behalf of DMTL. In the case of combination or inseparable mixing with other items, DMTL shall acquire co-ownership rights in and to the new good in the proportion of the value of the items at the time of combination or mixing. If and when such combination or mixing is made in such a manner that the items of SUPPLIER are to be considered as the main thing, then in such case SUPPLIER transfers to DMTL already now co-ownership rights in respect of the new item on a pro rata basis in the relation of the values, the items had before the combination or mixing to each other. DMTL accepts this transfer of co-ownership rights. SUPPLIER shall hold the co-ownership rights in custody for DMTL.

9. Confidentiality, Documents, Proprietary Rights
9.1 The parties shall treat confidential all documents and information in accordance with DMTL’s Standard Terms of Confidentiality. Any documents, models, tools, drawings or additional material provided by DMTL to SUPPLIER for the production of the goods remain the sole property of DMTL. Products created on the basis of these materials shall not be provided to third parties. SUPPLIER shall return those materials to DMTL free of charge and without DMTL’s request necessary where they are no longer needed for fulfilment of DMTL’s order. SUPPLIER’S right of retention is excluded.
9.2 SUPPLIER warrants that products supplied to DMTL hereunder do not infringe any third party intellectual or industrial property rights, including, but not limited to patents and design rights. SUPPLIER shall indemnify and hold harmless DMTL, its representatives, employees and agents from any claim arising out of infringement or alleged infringement, direct or indirect, of any such third party right, including but not limited to reasonable court expenses and attorney’s fees.
9.3 In case that DMTL orders standardized products (DIN-products) or modified standardized products, SUPPLIER transfers to DMTL a non-exclusive, non-assignable royalty free right of use in and to the
products supplied to DMTL for distribution, marketing and sale in perpetuity.

10. Spare Parts and Readiness for Delivery
10.1 SUPPLIER shall supply spare parts for the period of usual technical use, but at least for ten (10) years from the last delivery, on reasonable terms and conditions.
10.2 In the event that SUPPLIER discontinues supplying spare parts, DMTL shall be duly informed in writing and a timely manner and shall be given the opportunity of placing a final order under reasonable conditions.

11. Cancellation
DMTL may cancel contracts at any time in whole or part in accordance with statutory provisions under German law.

12. Release
SUPPLIER shall release DMTL, its representatives, employees and agents from and indemnify DMTL against any and all claims asserted against DMTL on the ground that damage has been caused by the use of the DMTL product for the intended purpose or by the foreseeable use thereof if and when such damage is due to a defect in the design and/or manufacture of SUPPLIER or a breach of SUPPLIER’S duties to control or monitor the products supplied. Under the same conditions, SUPPLIER shall also be liable for any damage or costs caused by reasonable precautionary measures taken against product liability claims (for example, by recall campaigns). SUPPLIER shall conclude and hold in full force a general liability and product liability insurance which ensures sufficient insurance coverage for the product’s relevant risks to DMTL. SUPPLIER shall provide DMTL with proof of such insurance policies at DMTL’s request.

13. Miscellaneous
13.1 There are no oral ancillary agreements. All agreements between DMTL and SUPPLIER shall be drawn up in writing. The foregoing shall also apply to any amendment or supplementation of this written form requirement. The required written form may also be satisfied by transmission by facsimile or electronic media.
13.2 These CONDITIONS and the entire legal relations between DMTL and the SUPPLIER shall be exclusively governed by and interpreted in accordance with the laws of the Federal Republic of Germany. If such laws should refer to foreign legal systems, such reference is ineffective. The Convention on Contracts for the International Sale of Goods (CISG) shall be excluded for these CONDITIONS and any contracts and agreements entered into on the basis of these CONDITIONS.
13.3 Where SUPPLIER is a trader (“Kaufmann”), a legal entity under public law or a public law special fund or has its registered office outside the Federal Republic of Germany, exclusive jurisdiction and venue shall lie with the courts of Munich, Federal Republic of Germany. However, DMTL shall also be entitled to issue proceedings in the courts at the location of the SUPPLIER’S registered office.
13.4 Should one or more provisions of these CONDITIONS be or become as whole or partly invalid, this shall not affect the validity of the remaining provisions which shall remain valid and in full force.

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Confidential Nature and Prohibition of Disclosure and Use of Confidential Information

Status: 26 June 2013

1. Subject-matter and purpose. The following General Terms and Conditions of Confidential Nature and Prohibition of Disclosure and Use of Confidential Information (“CONDITIONS”) by Dornier MedTech Laser GmbH, having its principal place of business in Argelsrieder Feld 7, D-82234 Wessling („DMTL“) shall solely apply to business companies within the meaning of Sec. 310 para. 1 German Civil Code (BGB) in conjunction with Sec.14 BGB and to legal entities under public law and special funds under public law [öffentlich-rechtliches Sondervermögen].

These CONDITIONS shall apply exclusively and to all future transactions between DMTL and its supplier (“SUPPLIER“) even where not expressly included in future transactions. Any terms and conditions by SUPPLIER conflicting with or deviating from these CONDITIONS shall NOT be applicable except where DMTL has expressly consented in writing to their application. These CONDITIONS shall also prevail where DMTL has accepted an offer by SUPPLIER or made an order to Supplier in each case without reservation, with knowledge of SUPPLIER’S terms and conditions which conflict with or deviate from these CONDITIONS.

DMTL’S General Terms and Conditions for Purchase make reference to these CONDITIONS and oblige SUPPLIER to confidentiality of and prohibition of use of confidential information which are handed over by DMTL prior to or during the contractual relationship between DMTL and SUPPLIER.

2. Confidential Nature and Prohibition of Use.

2.1 Confidential Information. Confidential information (“INFORMATION”) shall mean all documents, notifications, knowledge, economic or scientific data in particular, budgetary information, quotations, prices, commercial documentation, customer information, business plans, data exploitation plans and information in relation to development, documentation and production requirements or data in relation or leading to industrial property rights, schedules and objectives and data of employees of DMTL, irrespective of whether (i) being or being disclosed in written, oral or electronic form or (ii) marked as confidential or (iii) disclosed by the DMTL before or after concluding an agreement.

2.2 Obligations of the SUPPLIER. SUPPLIER shall:

• [protection as commercial and business secrets / limitation on use] (i) treat the INFORMATION disclosed to it as a commercial and business secret and (ii) protect such INFORMATION from disclosure to third parties by putting in place technical and organisational measures which correspond to the current state of the art and (iii) only make use of such INFORMATION to the extent essential for fulfilment of the contractual obligations entered into by SUPPLIER vis-à-vis DMTL; and
• [prohibition on copying and industrial property rights] refrain from economically exploiting or copying the INFORMATION in any manner whatsoever or permitting the INFORMATION to be exploited or copied by any third parties and in particular to refrain from applying for the registration of any designs and creations and industrial or intellectual property rights – in particular any marks, industrial designs, patents or utility models which may be developed in the context of the collaboration with the DMTL; and
• [no derivation of rights] refrain from deriving any rights from its knowledge of the INFORMATION, and in particular rights to prior use; and
• [the procurement of undertakings from employees] grant its employees access to the INFORMATION disclosed only to the extent such access is absolutely necessary for fulfilment of Supplier’s contractual obligations entered into by SUPPLIER vis-à-vis DMTL and to the extent SUPPLIER’S employees are bound by a confidentiality agreement at least as strict as SUPPLIER with respect to INFORMATION, however with no such employee’s right to disseminate the INFORMATION to further third parties; and
• [no disclosure to third parties] refrain from disclosing the INFORMATION to third parties without prior written consent of DMTL, and should such consent be given, to only disclose INFORMATION to third parties if such third parties are bound by a confidentiality agreement at least as strict as SUPPLIER with respect to INFORMATION, however with no third party’s right to disseminate the INFORMATION to further third parties.

2.3 Exceptions and Burden of Proof. The obligations under Clause 2.2 shall not apply to the extent SUPPLIER is able to prove that the INFORMATION:
• was, is or will become prior to, at the time of or after its disclosure (i) generally known or (ii) known or made available to SUPPLIER, in each case of (i) or (ii) without any breach of any confidentiality obligation or prohibition of use, both in law or otherwise; or
• has been developed independently by SUPPLIER without any breach of any confidentiality obligation or prohibition of use, both in law or otherwise; or
• has been released for disclosure by DMTL in writing prior to disclosure by SUPPLIER; or
• has to be disclosed on the basis of an immediately enforceable judicial or administrative act or mandatory statutory obligation; the SUPPLIER shall notify DMTL in good time prior to any such disclosure in writing.

2.4 Data Protection. Where SUPPLIER receives personal data, the SUPPLIER shall use such data exclusively for fulfilment of its obligations vis-à-vis DMTL. SUPPLIER shall comply with all applicable provisions relating to data protection. In the event any such provisions are infringed, the SUPPLIER must inform DMTL immediately in writing. Should proceedings be instigated against DMTL by third parties on account of any infringements of data protection laws by the SUPPLIER, SUPPLIER shall indemnify at first instance DMTL in respect of any costs which may be incurred by DMTL.

2.5 No Assignment of Rights. These CONDITIONS shall not be construed as to and does not constitute a transfer, grant or assignment of any rights to any proprietary rights, especially, but not limited to know how by DMTL to the SUPPLIER.

2.6 No Additional Contractual Relations. These CONDITIONS shall not be construed as to oblige DMTL to enter into contractual relations and DMTL shall not be obliged by these CONDITIONS to enter into any contractual relations with the SUPPLIER.

3.1 Liability. DMTL shall assume no liability for the accuracy and usability of the INFORMATION disclosed whether based on contract or tort, in particular claims for suspension of business, loss of profit and loss of information or data unless where (i) stated expressly otherwise in these CONDITIONS or in a separate agreement (ii) based on DMTL’S intention or gross negligence or (iii) based on the German Product Liability Act [Produkthaftungsgesetz] or (iv) based on the absence of characteristics guaranteed by DMTL or (v) based on a breach of DMTL’S material contractual obligations [Kardinalpflichten]. Kardinalpflichten are obligations without its fulfilment it is not possible to properly perform an agreement and on its compliance the SUPPLIER is entitled to rely. Unless expressly stated in writing by DMTL or where provided for in an agreement or these CONDITIONS, these CONDITIONS and any INFORMATION disclosed shall constitute no consent, warranty or guarantee by DMTL.

3.2 Export Provisions. The SUPPLIER is aware that the transfer and export of INFORMATION or personal data (Clause 2.4) may be subject to mandatory regulation, especially, but not limited to US, European and German legislation. The SUPPLIER shall ensure compliance with such regulations and shall indemnify DMTL at first instance in respect of any costs which may be incurred by DMTL due to the SUPPLIER’S infringement of such regulations.

3.3. Obligations on and after Termination. On termination of an agreement the SUPPLIER shall immediately return the INFORMATION at its own expense to DMTL or – after having received prior written instructions to do so – destroy the INFORMATION in its entirety. The INFORMATION and personal data (Clause 2.4) shall remain the property of DMTL. Any right of retention by the SUPPLIER in connection with the INFORMATION or the personal data (Clause 2.4) is excluded. Termination of an agreement does neither affect SUPPLIER’S obligations under these CONDITIONS nor under an agreement, if any, with respect to INFORMATION nor this Clause 3.3.

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Confidential Nature and Prohibition of Disclosure and Use of Confidential Information

Status: 26 June 2013

1. Subject-matter and purpose. The following General Terms and Conditions of Confidential Nature and Prohibition of Disclosure and Use of Confidential Information (“CONDITIONS”) by Dornier MedTech Systems GmbH, having its principal place of business in Argelsrieder Feld 7, D-82234 Wessling („DMTS“) shall solely apply to business companies within the meaning of Sec. 310 para. 1 German Civil Code (BGB) in conjunction with Sec.14 BGB and to legal entities under public law and special funds under public law [öffentlich-rechtliches Sondervermögen].
These CONDITIONS shall apply exclusively and to all future transactions between DMTS and its supplier (“SUPPLIER“) even where not expressly included in future transactions. Any terms and conditions by SUPPLIER conflicting with or deviating from these CONDITIONS shall NOT be applicable except where DMTS has expressly consented in writing to their application. These CONDITIONS shall also prevail where DMTS has accepted an offer by SUPPLIER or made an order to Supplier in each case without reservation, with knowledge of SUPPLIER’S terms and conditions which conflict with or deviate from these CONDITIONS.
DMTS’ General Terms and Conditions for Purchase make reference to these CONDITIONS and oblige SUPPLIER to confidentiality of and prohibition of use of confidential information which are handed over by DMTS prior to or during the contractual relationship between DMTS and SUPPLIER.

2. Confidential Nature and Prohibition of Use.
2.1 Confidential Information. Confidential information (“INFORMATION”) shall mean all documents, notifications, knowledge, economic or scientific data in particular, budgetary information, quotations, prices, commercial documentation, customer information, business plans, data exploitation plans and information in relation to development, documentation and production requirements or data in relation or leading to industrial property rights, schedules and objectives and data of employees of DMTS, irrespective of whether (i) being or being disclosed in written, oral or electronic form or (ii) marked as confidential or (iii) disclosed by the DMTS before or after concluding an agreement.

2.2 Obligations of the SUPPLIER. SUPPLIER shall:
• [protection as commercial and business secrets / limitation on use] (i) treat the INFORMATION disclosed to it as a commercial and business secret and (ii) protect such INFORMATION from disclosure to third parties by putting in place technical and organisational measures which correspond to the current state of the art and (iii) only make use of such INFORMATION to the extent essential for fulfilment of the contractual obligations entered into by SUPPLIER vis-à-vis DMTS; and
• [prohibition on copying and industrial property rights] refrain from economically exploiting or copying the INFORMATION in any manner whatsoever or permitting the INFORMATION to be exploited or copied by any third parties and in particular to refrain from applying for the registration of any designs and creations and industrial or intellectual property rights – in particular any marks, industrial designs, patents or utility models which may be developed in the context of the collaboration with the DMTS; and
• [no derivation of rights] refrain from deriving any rights from its knowledge of the INFORMATION, and in particular rights to prior use; and
• [the procurement of undertakings from employees] grant its employees access to the INFORMATION disclosed only to the extent such access is absolutely necessary for fulfilment of Supplier’s contractual obligations entered into by SUPPLIER vis-à-vis DMTS and to the extent SUPPLIER’S employees are bound by a confidentiality agreement at least as strict as SUPPLIER with respect to INFORMATION, however with no such employee’s right to disseminate the INFORMATION to further third parties; and
• [no disclosure to third parties] refrain from disclosing the INFORMATION to third parties without prior written consent of DMTS, and should such consent be given, to only disclose INFORMATION to third parties if such third parties are bound by a confidentiality agreement at least as strict as SUPPLIER with respect to INFORMATION, however with no third party’s right to disseminate the INFORMATION to further third parties.

2.3 Exceptions and Burden of Proof. The obligations under Clause 2.2 shall not apply to the extent SUPPLIER is able to prove that the INFORMATION:
• was, is or will become prior to, at the time of or after its disclosure (i) generally known or (ii) known or made available to SUPPLIER, in each case of (i) or (ii) without any breach of any confidentiality obligation or prohibition of use, both in law or otherwise; or
• has been developed independently by SUPPLIER without any breach of any confidentiality obligation or prohibition of use, both in law or otherwise; or
• has been released for disclosure by DMTS in writing prior to disclosure by SUPPLIER; or
• has to be disclosed on the basis of an immediately enforceable judicial or administrative act or mandatory statutory obligation; the SUPPLIER shall notify DMTS in good time prior to any such disclosure in writing.

2.4 Data Protection. Where SUPPLIER receives personal data, the SUPPLIER shall use such data exclusively for fulfilment of its obligations vis-à-vis DMTS. SUPPLIER shall comply with all applicable provisions relating to data protection. In the event any such provisions are infringed, the SUPPLIER must inform DMTS immediately in writing. Should proceedings be instigated against DMTS by third parties on account of any infringements of data protection laws by the SUPPLIER, SUPPLIER shall indemnify at first instance DMTS in respect of any costs which may be incurred by DMTS.

2.5 No Assignment of Rights. These CONDITIONS shall not be construed as to and does not constitute a transfer, grant or assignment of any rights to any proprietary rights, especially, but not limited to know how by DMTS to the SUPPLIER.

2.6 No Additional Contractual Relations. These CONDITIONS shall not be construed as to oblige DMTS to enter into contractual relations and DMTS shall not be obliged by these CONDITIONS to enter into any contractual relations with the SUPPLIER.

3.1 Liability. DMTS shall assume no liability for the accuracy and usability of the INFORMATION disclosed whether based on contract or tort, in particular claims for suspension of business, loss of profit and loss of information or data unless where (i) stated expressly otherwise in these CONDITIONS or in a separate agreement (ii) based on DMTS’ intention or gross negligence or (iii) based on the German Product Liability Act [Produkthaftungsgesetz] or (iv) based on the absence of characteristics guaranteed by DMTS or (v) based on a breach of DMTS’ material contractual obligations [Kardinalpflichten]. Kardinalpflichten are obligations without its fulfilment it is not possible to properly perform an agreement and on its compliance the SUPPLIER is entitled to rely. Unless expressly stated in writing by DMTS or where provided for in an agreement or these CONDITIONS, these CONDITIONS and any INFORMATION disclosed shall constitute no consent, warranty or guarantee by DMTS.

3.2 Export Provisions. The SUPPLIER is aware that the transfer and export of INFORMATION or personal data (Clause 2.4) may be subject to mandatory regulation, especially, but not limited to US, European and German legislation. The SUPPLIER shall ensure compliance with such regulations and shall indemnify DMTS at first instance in respect of any costs which may be incurred by DMTS due to the SUPPLIER’S infringement of such regulations.

3.3. Obligations on and after Termination. On termination of an agreement the SUPPLIER shall immediately return the INFORMATION at its own expense to DMTS or – after having received prior written instructions to do so – destroy the INFORMATION in its entirety. The INFORMATION and personal data (Clause 2.4) shall remain the property of DMTS. Any right of retention by the SUPPLIER in connection with the INFORMATION or the personal data (Clause 2.4) is excluded. Termination of an agreement does neither affect SUPPLIER’S obligations under these CONDITIONS nor under an agreement, if any, with respect to INFORMATION nor this Clause 3.3.

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