General Terms and Conditions of Business for Services relating to Declaration and Marketability

for Swiss Food Quality Business AG (Thurgauerstr. 40 - CH - 8050 Zürich)


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§ 1 Validity

1. The following General Terms and Conditions of Business shall apply to contracts (also futurecontracts) between the company Swiss Food Quality Business AG (hereafter referred to as "SWISS FOOD") and the other contracting party(hereafter referred to as the "Client"). Any clauses or regulations in the Client's General Terms and Conditions of Business shalltherefore be expressly revoked unless SWISS FOOD has agreed to their validity in writing. The General Terms and Conditions of Business of SWISS FOOD shall also apply where SWISS FOOD fulfils its contractual obligations without reservation despite the knowledge of terms and conditions of the Client which oppose or contradict the General Terms and Conditions of Business of SWISS FOOD.

2. All agreements which are entered into betweenSWISS FOOD and the Client for the purpose of the conclusion of a Contract must be stipulated in writing within the respective Contract.

3. The present terms and conditions are alsoapplicable to service contracts and mixed contracts.

4. SWISS FOOD shall hold sole copyright and ownership rights to any and all diagrams, drawings, calculations and other documents which are provided to the Client. In principle, such documents may only be disclosed to a third party, especially those marked as confidential, with the express agreement of SWISS FOOD. The obligation to maintain confidentiality shall also continue to apply following the completion of the respective Contract and shall only cease to apply if and to the extent that information on the production techniques contained within the submitted diagrams, drawings, calculations and other documents has become general publicknowledge.

5. Any information provided to SWISS FOOD inassociation with the Client orders must be treated as confidential unless otherwise agreed or where such information is already public knowledge.

6. SWISS FOOD shall provide its declaration andmarketability check (hereafter referred to as the "Services") for the respective natural/legal person in private or public law who has issued the order (Client).

7. Where SWISS FOOD has not received any written instructions to the contrary from the Client, then no individuals other than the Client shall be entitled to issue instructions to SWISS FOOD, in particular with respect to the scope of the order, or the assignment of expert opinions/review reports. The Client herewithirrevocably authorises SWISS FOOD to outsource the provision of expert opinions/review reports to third parties where this has been assigned by the Client, or to the extent that this is tacitly implied, at SWISS FOOD's discretion, by the circumstances, according to commercial custom, common usage or in practice.

 

Section 2 Conclusion of the Contract - Provision of Services – Prices – Payment Terms

1. All declarations and agreements between SWISS FOOD and the Client relating to the Contract, its conclusion and its execution must be submitted in writing.

2. Offers from SWISS FOOD and the drawings, diagrams, dimensions, weights and other service data shall be nonbinding. SWISSFOOD shall be bound to the prices which are expressly indicated as binding in the offers for one month following the offer date.

3. A Contract shall not come into existence until the Client has signed and returned the SWISS FOOD order, whereby transmission of this form via email shall suffice. For further commissions by the Client, the eMail form shall also be sufficient. The basic prerequisite of the conclusion of a Contract, including all and any extension or amendment, shall be that the Client provides SWISS FOOD with the respective current productspecification in the English language for each product label, where proofing and review of the product labels is performed outside of the Federal Republic of Germany.

4.If after a given order changes or updates of the existing order are necessary, appropriate processing fees will apply.

5.SWISS FOOD shall provide its services with all duecare in accordance with the specific instructions of the Client, where this is confirmed by SWISS FOOD. Where not otherwise stipulated, SWISS FOOD shall provide a declaration and marketabilitycheck as part of its services. For this purpose, the Client will send SWISS FOOD the respectiveproduct labels for which the service must be provided in the respective national language, in pdf format. SWISS FOOD will then check this productlabel for conformity with the food-related legislation and requirements of the specific country. SWISS FOOD will provide the Client with the results of the review and if necessary, will specify any changerequests which are required in advance via e-mail. Where changes must be made to the label, the Client will send the modified label for one final review to SWISS FOOD. Provided that SWISS FOOD classifies the label as compliant with the food-related legislation and requirements of the country of destination, SWISS FOOD shall issue the release for this product label.

6.All information in the expert opinions/review reportsis derived from the results of the declaration and marketability check, which was used in agreement with the Client's instructions, and/or from the evaluation of similar results on the basis of the food-related legislation or requirements of the country of destination as specified by the Client, or other circumstances which must be taken into account in the opinion of SWISS FOOD.

7.Expert opinions/review reports from SWISS FOOD on product labels apply exclusively to these labelsand do not apply to the rest of the delivery.

8.Expert opinions/review reports from SWISS FOOD reflect only those facts which have been established at the time of the review as part of the specificinstructions provided by the Client, taking intoaccount the respective food-related legislation andrequirements of the country of destination. SWISS FOOD is not obliged to refer to values or facts, nor to report on values or facts which are not related to the instructions provided by the Client or to the respective food-related legislation and requirements of the country of destination.

9.The Client accepts that messages sent via theinternet may be lost, modified or falsified, with or without the action of a third party, that standard e-mails and e-mail systems are not protected fromaccess by third parties and that SWISS FOOD shall therefore not be held liable for the confidentiality and integrity of e-mails which have left the area of responsibility of SWISS FOOD. SWISS FOOD shall also not assume liability for any possible computer viruses associated with the electronic transmission of data and any potential resultant technical damage for the Client.

10. SWISS FOOD shall be entitled to outsource its services, either in full or in part, to a sub-contractor. The Client shall authorise SWISS FOOD to disclose all information to the sub-contractor which will be necessary or useful for the provision and fulfilment of the outsourced services.Where not otherwise specified in the SWISS FOOD offer, SWISS FOOD "ex-factory" prices shall apply, excluding packaging; packaging is listed separately in the invoice. Each review performed by SWISS FOOD shall count as an individual review and shall also be billed as such. Where not otherwise agreed for follow-on checks or reviews, these reviews or checks shall also be billed as per the price of the SWISS FOOD offer for the initial check or review.

11.The legally applicable VAT is not included in theSWISS FOOD prices; it is listed separately inthe invoice at the legally applicable level on thedate on which the invoice is raised.

12.The application of a discount shall be subject toa separate agreement in writing.

13.Where not otherwise specified within the orderconfirmation, the purchase price shall be due forpayment net (without deduction) immediately onthe invoice date. The legislation governing theconsequences of late payments shall apply.

14.The Client shall only be entitled to assert anyrights to offset where his counterclaims aremade in a legally binding fashion, areundisputed or are acknowledged in writing bySWISS FOOD. Furthermore, the Client shallonly be entitled to exercise a right to retainpayment to the extent that his counterclaim isbased on the same contractual relationship.

15.In the event that SWISS FOOD becomes awareof circumstances which call into question thecreditworthiness of the Client, in particular whereoutstanding payments are due, SWISS FOODshall be entitled to bill the outstanding amountowed immediately. In addition, where this is thecase, SWISS FOOD shall be entitled to provideoutstanding services only where an advancepayment is made or to demand a securitydeposit.

Section 3 Delivery Time

1.Delivery dates and deadlines are not binding.The delivery time shall not commence until thetechnical details of the order have been clarified,the agreed documents and/or deposits havebeen received and the Client has fulfilled hisduties to cooperate as stipulated within theContract or as specified in Section 4. Wereserve the right to refuse/suspendperformance.

3.Where not otherwise stipulated within the orderconfirmation, delivery "ex-factory" is agreed.

4.SWISS FOOD shall be entitled to provide partialdeliveries and partial services at all times.

5.If the Client delays his acceptance or culpablyinfringes his other duties to cooperate, thenSWISS FOOD shall be entitled to demandcompensation for any damages which it hasincurred by this point, including compensationfor any additional expenditure. This shall bewithout prejudice to any other claims.

6.SWISS FOOD shall assume liability inaccordance with the legal requirements,provided that the delivery delay is due to a wilfulor grossly negligent contractual violation bySWISS FOOD or the culpable infringement of afundamental contractual obligation; theculpability of representatives or agents isattributable to SWISS FOOD. Provided that thedelivery delay is not the result of a wilfulinfringement of the Contract by SWISS FOOD,the claim for compensation arising fromdamages shall be limited to the foreseeabledamages which would typically occur.

Section 4 Duties to Cooperate by the Client

The Client shall:

1.Guarantee that the information which is requiredin order to carry out the order (e.g. productlabels with product specifications in the Englishlanguage), instructions and documents areprovided to SWISS FOOD in a timely fashion (atleast 48 hours prior to commencement of theagreed service);

2.Assert all his rights and fulfil all his duties andobligations towards third parties which areincumbent upon him as a result of contracts oragreements or in accordance with legislation.

Section 5 Investigation of Defects – Liability for Defects

1.Claims submitted by the Client due to a defectshall require that the Client has correctly fulfilledhis investigative duties and his duty to report adefect in accordance with Section 377 of theGerman Commercial Code (HGB).

2.A possible right to choose subsequent fulfilmentin accordance with Section 439 Para. 1 of theGerman Civil Code [BGB] (improvement or

(C) 2018 - SF AGB (Swiss Food General Terms and Conditions of Business) - Vers.02 2 subsequent delivery) shall be available to SWISS FOOD.

3.SWISS FOOD shall assume liability inaccordance with the legal requirements,provided that the Client makes claims forcompensation for damages which are based onwilful or gross negligence, including the wilful orgross negligence by representatives or agentsof SWISS FOOD. Provided that SWISS FOODis not accused of the wilful infringement orviolation of the Contract, liability for thecompensation for damages shall be limited tothe foreseeable damage which would typicallyoccur.

4.SWISS FOOD shall be liable in accordance withthe legal requirements provided that it hasculpably violated a fundamental obligation of theContract; however, where this in the case, theliability for damages shall be limited to thedamage which would typically occur.

5.Liability for culpable injury to life, limb or healthshall remain unaffected; this also applies to themandatory liability in accordance with productliability law.

6.However, the liability of SWISS FOOD on thegrounds of simple negligence shall be limitedper damage event to a maximum total sumwhich is equal to ten times the fee for therespective services, the execution of suchservices having led to the damages. However,under no circumstances shall the liability ofSWISS FOOD exceed a maximum total sum ofEURO 5,000.00 (in words: five thousand Euros)per damage incident.

7.Where not otherwise agreed in advance, liabilityshall be excluded. This shall apply in particularto indirect or subsequent damages, lost profit,business failure, loss of a business opportunity,a reduction in the value of the company andcosts associated with a product recall.Furthermore, SWISS FOOD shall not be liablefor any losses, damages or costs which mayoccur for the Client as the result of a claim by athird party (in particular the enforcement ofproduct liability claims).

8.In the event of damage compensation claims,the Client must submit the claim within 30 daysof discovering the circumstances causing thedamage in writing to SWISS FOOD and mustprovide all relevant individual proofs andevidence. In all cases, damage compensationclaims due to violations of obligations by SWISSFOOD shall expire after twelve months, thecommencement of this period to be calculatedfollowing the statutory start of the limitationperiod.

9.The limitations of liability in this Section 5 do notapply to damages which are due to grossnegligence or intent. The same shall apply todamages arising from injury to life, limb orhealth where SWISS FOOD is culpable forinfringement of a duty or obligation. Theviolation of a duty or obligation by the legalrepresentative or agent of SWISS FOOD isequal to the violation of a duty or obligation bySWISS FOOD itself in the sense of this Section

Section 6 Liability

1.Liability for compensation for damages whichexceeds that which is specified in Section 4shall be excluded – without consideration of thelegal nature of the submitted claim. This shallapply in particular to claims for compensationarising from culpability during conclusion of theContract, due to any other violations ofobligations or duties or due to tortious claims forcompensation arising from property or materialdamages in accordance with Section 823 of theGerman Civil Code (BGB).

2.Limitation according to Section 6 Para. 1 shallalso apply where the Client demands thereimbursement of useless expenditure ratherthan the submission of a claim forcompensation for damages.

3.To the extent that the liability for claims fordamages by SWISS FOOD is excluded orlimited, then the same shall also apply to thepersonal liability for claims for damages byemployees, staff, colleagues, representativesand agents of SWISS FOOD.

Section 7 Industrial Property Rights, Copyright and Protection of Work Results

1.In the event that a third party makes a claim on thebasis of use of the service by the Client on thegrounds of violation of the industrial property rightsor copyrights belonging to the third party,

the Client shall inform SWISS FOOD without furtherdelay in writing. Where this is the case, SWISSFOOD shall reserve the right to instigate alldefensive measures and all extrajudicial measuresfor its own legal defence. The Client shall supportSWISS FOOD in doing so.

2.SWISS FOOD shall reserve all its rights to allreview methods and/or review procedures and to alldevices and/or equipment which it has developeditself or uses in general, unless these have beendeveloped exclusively for the Client as part of theprovision of the services as per written agreement.

3.SWISS FOOD shall retain the copyright for theprovided services where these services are coveredby copyright. As part of the contractualrelationships, the Client shall only be entitled to useexpert opinions/review reports or expert reportswhich have been produced, together with all tables,calculations and other specifics following fullpayment of the fee for the specific purpose whichhas been agreed within the Contract. However, theClient shall not be entitled to amend, edit or to useonly extracts of the expert opinions/review reportsor expert reports. The forwarding of expertopinions/review reports or expert reports toauthorities or to other public bodies shall bepermitted to the extent that this is necessary inaccordance with the contractually stipulatedpurpose or where this is a legal requirement.Furthermore, any publication or transmission, evenof extracts, of the expert opinions/review reports orexpert reports, in particular via the internet or foradvertising purposes and any transmission to a thirdparty, shall only be permitted following the priorwritten agreement from SWISS FOOD.

Section 8 Force Majeure

1. In the event of force majeure, the contracting partyaffected shall be freed from the obligation to deliver,or to accept, a service for the duration of and to theextent of the impact of such incident of forcemajeure. Force majeure is any event or incidentwhich lies outside of the control of the respectivecontracting party and which prevents this party fromfulfilling his contractual obligations and duties, eitherin whole or in part, including fire damage, flooding,strikes and legal lockouts and any operationaldisturbances or official orders decrees for which hecannot be held culpable. Supply difficulties andother service disturbances on the part of the Client'sprimary suppliers shall only be considered forcemajeure where the primary supplier is unable toprovide the service incumbent on him due to anevent or incident in accordance with Clause 1.

2. The affected contracting party must inform the othercontracting party without further delay of theoccurrence or elimination of an incident due to forcemajeure and must endeavour to the best of hisabilities to rectify the impact of the force majeureand to limit its impact to as great an extent aspossible.

3. In the event of an incident resulting from forcemajeure, the contracting parties shall agree on howto proceed further and shall decide whether theproducts which were not supplied during the periodof force majeure, should be delivered at a later date.Irrespective of the above, each contracting partyshall be entitled to withdraw from the ordersaffected by such force majeure where the incidentcontinues for over 4 weeks after the agreed deliverydate. This shall be without prejudice to the right ofeach contracting party to terminate the Contract forgood cause in the event of ongoing force majeure.

Section 9 Data Protection - Applicable Law – Court of Jurisdiction – Place of Fulfilment

1.The Client shall herewith be informed in accordancewith Section 33 Para. 1 of the German Federal DataProtection Act that SWISS FOOD shall process hisaddress in machine-readable format and shallprocess this data electronically for orders arisingfrom the Contract.

2.All legal relationships between SWISS FOOD andthe Client shall be governed exclusively by Germanlaw. German law shall also apply to cross-bordertransactions, except for the United Nations

Convention on Contracts for the International Sale of Goods (CISG).

3.The sole court of jurisdiction for all disputesarising from the legal relationship betweenSWISS FOOD and the Client is in Freiburg imBreisgau (Germany). However, SWISS FOODshall also be entitled to instigate legalproceedings against the Client at his usualgeneral court of jurisdiction.

4.Where not otherwise stipulated within the orderconfirmation by SWISS FOOD, the place offulfilment shall be the registered office of SWISSFOOD.

Section 10 Salvatory Clause

In the event that a clause of these General Terms and Conditions of Business is or becomes null and void, the remaining clauses of the Contract shall remain effective.

Court of jurisdiction is Freiburg im Breisgau.Updated: Okt. 2018