General Terms and Conditions of Sale
(United States)

1.0 GENERAL
1.1 Definitions

“BUYER” means the party that signs the CONTRACT documents as counterpart to HEARTLAND REPAIR & COATINGS.

“COATING, WELDING AND MACHINING SERVICES” means services or goods provided by HEARTLAND REPAIR & COATINGS.

“CONTRACT” means the PURCHASE ORDER plus all documents referred to therein.

“ENGINEERING SERVICES” means engineering work not making part of a CONTRACT for the delivery of a SYSTEM.

“FINAL ACCEPTANCE” means the document issued by the BUYER or the end-user at the beginning of the warranty period or, if no FINAL ACCEPTANCE document is provided for in the CONTRACT, the document evidencing shipment of the goods or completion of the services. For consignment goods, FINAL ACCEPTANCE will take place at the date of transfer of ownership, usually at the point of consumption.

“GENERAL TERMS” means these General Terms and Conditions of Sale of HEARTLAND REPAIR & COATINGS.

“COMPONENTS” means goods not being a SYSTEM or SPARE PARTS.

“MAINTENANCE / REPAIR / INSTALLATION SERVICES” means services not connected to the delivery of a SYSTEM and not falling under COATING, WELDING AND MACHINING SERVICES.

“MATERIALS” means any consumables (e.g., powders, wires) used in the coating, welding, and machining process.

“ORDER CONFIRMATION” means the document provided by HEARTLAND REPAIR & COATINGS to BUYER as a response to BUYER’S purchase order documents either by e-mail, facsimile or as a hardcopy.

“PURCHASE ORDER” means the purchase order documents issued by BUYER in the version confirmed by HEARTLAND REPAIR & COATINGS in the ORDER CONFIRMATION. In case of deviations between said purchase order documents and the ORDER CONFIRMATION, the version of the ORDER CONFIRMATION shall become the binding PURCHASE ORDER unless BUYER expresses its dissent by e-mail, facsimile or hard copy within three (3) working days after receipt of the ORDER CONFIRMATION.

“SCOPE OF SUPPLY” means the goods and/or services, including but not limited to COATING, WELDING AND MACHINING SERVICES, ENGINEERING SERVICES, COMPONENTS, AND MATERIALS and the pertaining documentation to be delivered under the PURCHASE ORDER as explicitly specified and agreed upon by both parties.

1.2 These GENERAL TERMS apply to all deliveries made by HEARTLAND REPAIR & COATINGS. Deviations from these GENERAL TERMS have to be agreed upon in a mutually signed document.

1.3 The delivery encompasses the SCOPE OF SUPPLY.

1.4 In case of contradiction between CONTRACT documents, the following order of precedence shall apply:
   a) PURCHASE ORDER or other negotiated, agreed and mutually signed document, including all documents made a part thereof
   b) HEARTLAND REPAIR & COATINGS’ documented offer
   c) These GENERAL TERMS
   d) BUYER’S request for an offer
   e) BUYER’S Purchase Terms and Conditions

1.5 All documents making part of the CONTRACT can be changed only in a written, duly signed document.

1.6 HEARTLAND REPAIR & COATINGS’ sales and service personnel are not authorized to enter into any indemnity agreements on behalf of HEARTLAND REPAIR & COATINGS.

1.7 All information and data contained in brochures and price lists are binding only to the extent that they are by reference expressly included in the CONTRACT.

2.0 DELIVERY DATE

2.1 HEARTLAND REPAIR & COATINGS shall deliver the SCOPE OF SUPPLY at the dates specified in the PURCHASE ORDER as confirmed in the ORDER CONFIRMATION. The delivery period shall commence at the date of coming into force of the PURCHASE ORDER, or, if an initial down-payment has been agreed upon, five days after date of receipt of such down-payment.

PRICE AND PAYMENT

3.1 The prices for the SCOPE OF SUPPLY are those stated in the PURCHASE ORDER. For work carried out on a time basis, the prices shall be determined in accordance with the hourly rates specified in the PURCHASE ORDER. If no agreement on hourly rates has been made, the hourly rate applied by HEARTLAND REPAIR & COATINGS for other customers and comparable work shall apply. All prices are exclusive of VAT, sales taxes, excise duties, or similar taxes and duties.

3.2 Payment terms per scope of project. Payments for prices calculated on a time basis shall be invoiced on a monthly basis or after completion of the work, whichever occurs first. Payment shall be made within thirty (30) calendar days from invoice date.

3.4 If the BUYER should not comply with the agreed dates of payment, BUYER shall be liable, without reminder, for interest with effect from the agreed date on which payment was due, at a rate depending on the normal interest conditions at the BUYER’S domicile, but not less than five percentage points (5 %) above the three months’ LIBOR (London Interbank Offered Rate) applicable at the due date of the
2021-2024 GENERAL TERMS AND CONDITIONS OF SALE (United States)
Heartland Repair & Coatings, LLC
Page 3 May 9, 2024
delayed payment.

3.5 All payments shall be made without any deductions in the currency stated in the CONTRACT.

3.6 In case of late payment, HEARTLAND REPAIR & COATINGS may after having notified the BUYER in writing suspend its performance of the SCOPE OF PROJECT until the open and due invoices have been paid.

4.0 INTELLECTUAL PROPERTY

4.1 BUYER shall provide the technical documentation (e.g. up-to-date drawings, descriptions, charts, instructions) which is necessary for the delivery of the SCOPE OF SUPPLY and is specified in the CONTRACT. BUYER confirms that BUYER is fully authorized to use (or have used) the technical documentation provided to HEARTLAND REPAIR & COATINGS for the performance of the SCOPE OF SUPPLY by HEARTLAND REPAIR & COATINGS or its sub-suppliers, respectively. In case BUYER would not be authorized to order said performance from HEARTLAND REPAIR & COATINGS without violation of intellectual property rights of third parties, or if such right should be challenged, BUYER shall inform HEARTLAND REPAIR & COATINGS without any delay. In this case, HEARTLAND REPAIR & COATINGS shall stop the work until the approvals needed for the performance have been obtained.

4.2 HEARTLAND REPAIR & COATINGS shall not use technical documentation received from BUYER for any purpose other than to fulfill the CONTRACT.

4.3 Any know-how, inventions, patents, copyrights, other intellectual property of any kind, or the like belonging to or provided by HEARTLAND REPAIR & COATINGS and used for or developed in the course of the fulfillment of the CONTRACT by HEARTLAND REPAIR & COATINGS shall remain HEARTLAND REPAIR & COATINGS’ exclusive property, and no ownership or license shall be transferred to BUYER with respect to such know-how, inventions, patents, copyrights, or other intellectual property of any kind, independent of the hardware on which such know-how, inventions, patents, copyrights, or other intellectual property is made available (machinery, paper, electronic medium, etc.). However, BUYER shall be granted a limited right to use such know-how, invention, patents, copyright or the like for the operation, maintenance and repair of the SCOPE OF SUPPLY on a non-exclusive basis, which right shall not include the use of the said intellectual property for the reproduction of the SCOPE OF SUPPLY or parts thereof, or other commercial purposes. If the SCOPE OF SUPPLY consists of ENGINEERING SERVICES, BUYER shall be permitted to use, on a non-exclusive basis, the documentation received for the purpose described in the PURCHASE ORDER. In case of doubt, ENGINEERING SERVICES provided for the development of a SYSTEM or the performance of COATING, WELDING AND MACHINING SERVICES shall be deemed to be made available for the procurement of such goods or services from HEARTLAND REPAIR & COATINGS.

4.4
a) HEARTLAND REPAIR & COATINGS warrants that the SCOPE OF SUPPLY and any part thereof, in the particular form sold by HEARTLAND REPAIR & COATINGS, shall not infringe any intellectual property rights of third parties. In the event of any patent infringement relating to the said SCOPE OF SUPPLY, HEARTLAND REPAIR & COATINGS may, in its sole discretion, procure the right to use the SCOPE OF SUPPLY without impairing its suitability, or modify or replace it so that it is rendered non-infringing. The obligations of HEARTLAND REPAIR & COATINGS set forth herein are contingent upon (if) HEARTLAND REPAIR & COATINGS receiving prompt written notice from BUYER of such alleged infringement; (ii) HEARTLAND REPAIR & COATINGS receiving assistance from BUYER in the defense; and (iii) the right of HEARTLAND REPAIR & COATINGS to settle or defend.

b) This obligation of HEARTLAND REPAIR & COATINGS shall not apply to (i) the SCOPE OF SUPPLY or part thereof which has been manufactured according to BUYER’S design, (ii) services performed by using BUYER’S documentation, (iii) the use of the SCOPE OF SUPPLY or any part thereof in conjunction with any other product in a combination not furnished by HEARTLAND REPAIR & COATINGS as part of the SCOPE OF SUPPLY, (iv) products and services fabricated by using the SCOPE OF SUPPLY. As to any such equipment, service, product, part or use in such combination, HEARTLAND REPAIR & COATINGS assumes no liability whatsoever for infringement of intellectual property rights of third parties, and BUYER shall indemnify HEARTLAND REPAIR & COATINGS against any respective infringement claims. HEARTLAND REPAIR & COATINGS shall co-operate with BUYER in the same manner as required by HEARTLAND REPAIR & COATINGS under 4.4 a) (i) to (iii) herein above.

4.5 HEARTLAND REPAIR & COATINGS’ copyrighted material shall not be copied by BUYER except for archiving purposes or to replace a defective copy.

5.0 INSTALLATION AND SITE PREPARATION

5.1 If installation services are a part of the SCOPE OF SUPPLY, it is the responsibility of the BUYER to prepare the site environmentally and to provide the requirements of the scope of work.

5.2 BUYER also undertakes to maintain the facilities, upon which HEARTLAND REPAIR & COATINGS’ personnel maybe required to enter, in a safe condition, and to comply with all applicable laws, statutes and regulations governing workplace health and safety, and to give HEARTLAND REPAIR & COATINGS’ personnel all instructions necessary. HEARTLAND REPAIR & COATINGS shall make sure that its personnel will follow all instructions reasonably made by BUYER. The same applies vice versa in case BUYER’S personnel have to enter upon HEARTLAND REPAIR & COATINGS’ facilities.

5.3 BUYER’S failure to comply with the obligations stated in Articles 5.1 and 5.2 above shall entitle HEARTLAND REPAIR & COATINGS to either stop rendering its services, and/or postpone the delivery terms, and/or ask for additional charges for the lost time of its service personnel, such time to be calculated and charged in accordance with Articles 3.1 and 3.3 herein above.

6.0 WARRANTY
Articles 6.1 through 6.7 contain specific warranties referring to various SCOPES OF SUPPLY. Only the warranty provision(s) referring to a specific SCOPE OF SUPPLY shall apply.

6.1 SYSTEMS and COMPONENTS
HEARTLAND REPAIR & COATINGS shall remedy any defect resulting from faulty materials or faulty workmanship. To the extent HEARTLAND REPAIR & COATINGS is responsible for the design the same obligation applies to defects resulting from faulty design. If requested to do so by BUYER in writing, and as BUYER’S sole and exclusive remedy, HEARTLAND REPAIR & COATINGS agrees to, at its sole option, either repair or replace the faulty parts of the SCOPE OF SUPPLY, or supply BUYER with non-defective SCOPE OF SUPPLY or part thereof. These remedies shall be provided for the defects notified to HEARTLAND REPAIR & COATINGS during the warranty period under the conditions defined in Article 6.9 herein below and are granted for twelve (12) months after receipt.

6.2 MATERIALS
HEARTLAND REPAIR & COATINGS warrants that when dispatched from HEARTLAND REPAIR & COATINGS’ factory, all MATERIALS meet the specifications described in the respective product data sheet. If requested to do so by BUYER in writing, and as BUYER’S sole and exclusive remedy, HEARTLAND REPAIR & COATINGS agrees to replace, at HEARTLAND REPAIR & COATINGS’ own cost, any MATERIALS which do not meet the specifications described in the said product data sheet or which have been specifically agreed upon in the CONTRACT. These remedies shall be provided for the defects notified to HEARTLAND REPAIR & COATINGS during the warranty period under the conditions defined in Article 6.9.

6.3 COATING, WELDING AND MACHINING SERVICES
HEARTLAND REPAIR & COATINGS shall remedy any defect resulting from not using the materials specified, or from faulty workmanship. HEARTLAND REPAIR & COATINGS assumes no warranty or representation regarding the fitness of the coating or machining applied for the purpose for which the coated goods are intended to be used. If requested to do so by BUYER in writing, and as BUYER’S sole and exclusive remedy, HEARTLAND REPAIR & COATINGS shall at its sole option repair the defective coating or machining or remove and re-process it. These remedies shall be provided for the defects notified to HEARTLAND REPAIR & COATINGS during the warranty period under the conditions defined in Article 6.9.

6.4 MAINTENANCE/ REPAIR/ INSTALLATION SERVICES
HEARTLAND REPAIR & COATINGS’ obligations consist of using proper care and skill in performing the work described in the CONTRACT and, if parts are supplied by HEARTLAND REPAIR & COATINGS in connection with such SERVICES, to deliver parts, which are free of defects. If requested to do so by BUYER in writing, and as BUYER’S sole and exclusive remedy, HEARTLAND REPAIR & COATINGS shall re-do any faulty service work at its own cost. Defects resulting from insufficient or inappropriate documentation delivered by BUYER shall be remedied at BUYER’S cost. These remedies shall be provided for the defects notified to HEARTLAND REPAIR & COATINGS during the warranty period under the conditions defined in Article 6.9.

6.5 General Conditions applicable to HEARTLAND REPAIR & COATINGS’ Warranty

a) Place where Warranty Work is executed
HEARTLAND REPAIR & COATINGS reserves the right to require that the BUYER or the end-user returns if applicable the SCOPE OF SUPPLY or parts thereof to HEARTLAND REPAIR & COATINGS’ production facility to provide proper warranty service. Regarding PRODUCTS AND SERVICES, HEARTLAND REPAIR & COATINGS shall use its best efforts to perform the warranty work at BUYER’S or end-user’s facility, and as soon as reasonably practicable after receipt of written notification by the BUYER or the end-user. In case HEARTLAND REPAIR & COATINGS requires that the BUYER or end-user returns the PRODUCTS AND SERVICES or part thereof to HEARTLAND REPAIR & COATINGS’ facilities, HEARTLAND REPAIR & COATINGS shall reimburse BUYER or end-user solely the costs paid for sea or land transportation, with the exclusion of any internal costs. Regarding COATING, WELDING AND MACHINING SERVICES, HEARTLAND REPAIR & COATINGS shall bear the costs for the corresponding repair or reprocessing work which occurs outside its works if it is not possible to carry out such repairs or reprocessing work in HEARTLAND REPAIR & COATINGS’ works, or if this would involve unreasonable expenses. Such costs shall be borne to the extent that they are reasonable under the circumstances prevailing, and provided BUYER or end-user has obtained HEARTLAND REPAIR & COATINGS’ prior written approval.

b) Start of Warranty Period
Unless otherwise agreed upon in writing, the warranty period for PRODUCTS AND SERVICES and MAINTENANCE / REPAIR / INSTALLATION SERVICES starts at the date of FINAL ACCEPTANCE of the respective SCOPE OF SUPPLY, in any case not later than thirty (30) days after announcement of readiness for shipment in case of delivery of goods, or completion of services. FINAL ACCEPTANCE shall not be deferred due to minor defects. For MATERIALS, COATING, WELDING AND MACHINING SERVICES, the warranty period starts at the date of delivery.

Early termination of Warranty Period
The warranty periods stipulated in 6.1 through 6.7 above shall terminate if BUYER or a third party under-takes inappropriate or improper modification or repairs, or if the BUYER, in case of a defect, does not as soon as reasonably possible take all appropriate steps to mitigate damages and to notify HEARTLAND REPAIR & COATINGS in writing of its obligation to remedy such defect.

c) Exclusion from HEARTLAND REPAIR & COATINGS’ Warranty
Excluded from HEARTLAND REPAIR & COATINGS’ warranty and liability for defects are all deficiencies which cannot be proved to have their origin in bad material, faulty design (if applicable), or poor workmanship, e.g. for deficiencies resulting from normal wear and tear, improper maintenance, or deficiencies resulting from other reasons beyond HEARTLAND REPAIR & COATINGS’ control, including damages caused by erosion, corrosion, cavitation and improper use. Replaced parts shall become the property of HEARTLAND REPAIR & COATINGS.

The BUYER or end-user shall at its own expense arrange for any dismantling and reassembly of equip-ment other than the dismantling and reassembly of the equipment pertaining to the SCOPE OF SUP-PLY, to the extent that this is necessary to remedy the defect.

Total liquidated damages as described under Articles 2.2 and 6.8 above shall be limited to five percent (5 %) of the CONTRACT Price.

HEARTLAND REPAIR & COATINGS MAKES NO WARRANTY OR REPRESENTATION TO THE SCOPE OF SUPPLY OTHER THAN AS SPECIFIED IN THIS SECTION. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.

6.10 Hazard Warning Responsibility

BUYER and HEARTLAND REPAIR & COATINGS acknowledge that each has respective obligations with respect to maintaining compliance with all workplace and industrial safety and health related regulations, including those applying to situations in which the HEARTLAND REPAIR & COATINGS HEARTLAND REPAIR & COATINGS equipment is utilized. HEARTLAND REPAIR & COATINGSBUYER acknowledges that it is familiar with the HEARTLAND REPAIR & COATINGS products and services and acknowledges its separate and independent knowledge of such risks, which are known in BUYER’S industry. BUYER shall maintain compliance with all safety and health related governmental requirements concerning HEARTLAND REPAIR & COATINGS products and services and shall take all reasonable and practical steps to inform, warn, and familiarize its employees, agents, contractors, and customers with all hazards associated therewith, including handling, shipment, storage, use, and disposal. BUYER assumes as to its employees, independent contractors, and subsequent purchasers of the HEARTLAND REPAIR & COATINGS products and services sold hereunder, all responsibility for all such necessary warnings or other precautionary measures. BUYER shall defend at its own expense, indemnify fully and hold harmless HEARTLAND REPAIR & COATINGS and its parents, subsidiaries, affiliates and their agents, officers, directors, employees, representatives, successors, and assigns from and against any and all liabilities, losses, damages, demands, claims, penalties, fines, actions, suits, legal, administrative or arbitration proceedings, judgments of any jurisdiction, costs and expenses (including, but not limited to, attorney’s fees and related costs) arising out of or in any manner related to BUYER’S failure to provide necessary warnings or other precautionary measures in connection with the HEARTLAND REPAIR & COATINGS products and services and services sold hereunder.

7.0 OVERALL LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE CONTRACT, INCLUDING ALL DOC-UMENTS MAKING PART THEREOF, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HEARTLAND REPAIR & COATINGS BE LIABLE TO THE PURCHASER, BY WAY OF INDEMNITY, OR BY REASON OF ANY BREACH OF CONTRACT OR OF STATUTORY DUTY OR BY REASON OF TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) FOR ANY LOSS OF PROFIT, LOSS OF CONTRACTS OR EARNINGS, DELAY DAMAGES, INTERRUPTION OR LOSS OF PRODUCTION, LOSS OF USE, LOSS OF OPPORTUNITY OR BUSINESS, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER THAT MAY BE SUFFERED BY PURCHASER. PURCHASER FURTHER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS HEARTLAND REPAIR & COATINGS FROM ANY CLAIM MADE BY END-USER OR PURCHASER’S CUSTOMERS FOR SUCH LOSSES, INCLUDING BODILY INJURY AND PROPERTY DAMAGE. THE REMEDIES OF PURCHASER SET FORTH HEREIN ARE EXCLUSIVE, AND HEARTLAND REPAIR & COATINGS’ LIABILITY WITH RESPECT TO ANY CONTRACT, INDEMNITY, TORT (INCLUDING NEGLIGENCE), UNDER ANY WARRANTY, STRICT LIABILITY OR OTHERWISE SHALL NOT EXCEED ONE HUNDRED PERCENT (100%) OF THE CONTRACT PRICE OR PORTION THEREOF UPON WHICH SUCH LIABILITY IS BASED, UNLESS CLAIMS ARISE FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF HEARTLAND REPAIR & COATINGS.

As used herein “gross negligence” shall mean reckless disregard of, or wanton indifference to, harmful and avoidable consequences and “willful misconduct” shall mean conduct that is committed with an intentional disregard for the safety of others and/or the safety of another’s property. “Gross negligence” and/or “willful misconduct” shall not include any act or omission or any error of judgment or mistake made in good faith.

8.0 EXPORT AND OTHER GOVERNMENTAL DOCUMENTS

8.1 HEARTLAND REPAIR & COATINGS undertakes to provide the documents required by the authorities at HEARTLAND REPAIR & COATINGS’ place for the manufacturing and transportation of the SCOPE OF SUPPLY.

8.2 BUYER undertakes to provide all other documents required, e.g. documents required by an authority at BUYER’S or BUYER’S customer’s place, or the place where the SCOPE OF SUPPLY will be used.

8.3 HEARTLAND REPAIR & COATINGS, BUYER and BUYER’S customer shall support each other without undue delay if one party needs information or documentation required by any authority, if such information or documentation can be delivered easier by one of the other parties than the required party.

8.4 The BUYER hereby represents and warrants that it is, and will remain in compliance with the requirements of all applicable export laws and regulations, including but not limited to the U.S. Export Administration Regulations and International Traffic in Arms Regulations. Such requirements include, but are not limited to obtaining all required authorizations or licenses for the export or re-export of any controlled item, product, article, commodity, software or technology. Without limiting the generality of the foregoing, the BUYER hereby represents and warrants that it has not been, and is not currently, debarred, suspended or otherwise prohibited or restricted from exporting, re-exporting, receiving, purchasing, processing or otherwise obtaining any item, product, article, commodity, software or technology regulated by any agency of the United States or any other state. The BUYER agrees to indemnify and hold harmless HEARTLAND REPAIR & COATINGS from any costs, penalties or other losses caused by, or related to, any violation or breach of the warranties contained in this provision.

9.0 FORCE MAJEURE

9.1 HEARTLAND REPAIR & COATINGS shall not be liable for any non-performance, loss, damage, or delay due to war, riots, fire, flood, strikes or labor difficulty, governmental acts such as but not limited to trade restrictions including embargoes, Acts of God, acts of the BUYER or its customer, delays in transportation, inability to obtain necessary labor or materials from usual sources, or other causes beyond the reasonable control of HEARTLAND REPAIR & COATINGS. In the event of delay in performance due to any such cause, the date of delivery or time for completion will be extended to reflect the length of time lost by reason of such delay. If the grounds for Force Majeure continue for more than six (6) months, either HEARTLAND REPAIR & COATINGS or BUYER may terminate the CONTRACT upon seven (7) days written notice to the other party.

9.2 HEARTLAND REPAIR & COATINGS shall be entitled to be compensated for the extra costs caused by the interruption, or, in case of termination, for the work done prior to termination and the expenses for non-cancelable procurements. BUYER shall be entitled to receive the work for which it has paid.

10.0 FREE ISSUE MATERIALS

10.1 Materials supplied by BUYER to HEARTLAND REPAIR & COATINGS (e.g. parts to be coated or machined, materials to be used for implementation in the SCOPE OF SUPPLY, etc.) shall at all times remain the property of BUYER. Subject to Article 6 and 7 hereinabove, HEARTLAND REPAIR & COATINGS will make reasonable efforts to maintain control of buyer supplied materials. Buyer recognizes any potential risk of damage to materials from the cold spray process and hereby accepts that risk.

11.0 MISCELLANEOUS

11.1 Applicable Laws and Jurisdiction

All matters connected with this CONTRACT, a PURCHASE ORDER, or document related to the pur-chase of SCOPE OF SUPPLY hereunder, and the performance thereof shall be construed, interpreted, applied and governed in all respects exclusively by the laws of the state of South Dakota without regard to the principles of conflicts of law.

The parties agree that the state or federal courts of the State of South Dakota shall have sole and exclusive judicial jurisdiction to determine any matter arising under this Agreement that cannot be resolved by the par-ties directly, and waive any claim that (i) they are not personally subject to their jurisdiction; (ii) the venue is improper; (iii) the forum is inconvenient; or (iv) the subject matter may not be enforced by these courts.

In case of a dispute, the parties shall make their best endeavors to solve such dispute amicably. If this should not be possible, the courts having jurisdiction of HEARTLAND REPAIR & COATINGS’ principal place of business shall have exclusive jurisdiction. However, HEARTLAND REPAIR & COATINGS reserves the right to claim against BUYER in the jurisdiction of BUYER’S principal place of business. All disputes shall be settled in accordance with the provision of the CONTRACT and the documents pertaining thereto.

11.2 Assignment

Any attempt to assign, transfer, or delegate any of the rights, duties or obligations herein to a third party without prior written consent of the other party shall render such attempted assignment or transfer null and
void. HEARTLAND REPAIR & COATINGS’ affiliated companies shall not be considered third parties for this purpose.

11.3 Waiver of Rights

HEARTLAND REPAIR & COATINGS’ or BUYER’S failure to exercise any of its rights shall not constitute or be deemed a waiver or a forfeiture of such rights.

11.4 Severability

If a provision of the CONTRACT is determined to be void or unenforceable, this finding shall not render other provision void or unenforceable, and HEARTLAND REPAIR & COATINGS and BUYER shall make their best endeavors to replace such provision by a valid one covering the original commercial intention as far as legally possible.