GENERAL TERMS AND CONDITIONS OF PURCHASE OF PRODALIM RAUNER GMBH

 GENERAL TERMS AND CONDITIONS OF PURCHASE OF PRODALIM RAUNER GMBH
1. DEFINITIONS.
- “Prodalim” means Prodalim Rauner GmbH, a German company, with its seat in Neuhausen, Germany,
registered with the commerce register at the local court of Mannheim under HRB 745220 or any of its
subsidiaries or Affiliates.
- “Supplier” means the supplier named in the Order and/or Agreement, as the case may be.
- “Products” mean, among others, the perishable and non-perishable ingredients, raw material, food and/or
beverages and/or similar and related products, in each case including by-products, that Prodalim purchase or
may purchase from Supplier as described in the Order and/or Agreement, as the case may be.
- “Agreement” means any Order from Prodalim to the Supplier and these PGT&C (as defined below), together
with any other written agreement between Prodalim and Supplier, including any amendments thereto.
- “Order” means the written purchase order or any other written order issued by Prodalim for the purchase of
Products from Supplier, including any amendments thereto.
- “Affiliate” means any company within the Prodalim Group, including, without limitation, (i) any parent
company of Prodalim Rauner GmbH, (ii) any subsidiary of Prodalim Rauner GmbH, (iii) any affiliate of
Prodalim Rauner GmbH, or (iv) any partnership or other entity that is owned or controlled by Prodalim Rauner
GmbH or any entity that owns or controls Prodalim Rauner GmbH, whether currently an affiliate, subsidiary
or parent or subsequently becoming an affiliate, subsidiary or parent.
- “PGT&C” means the following General Terms and Conditions of Purchase of Prodalim.
2. PGT&C.
These PGT&C are an integral part of and regulates each Order and/or Agreement that Prodalim or any of its
Affiliates issues, and/or to which Prodalim or any of its Affiliates is a party.
3. ACCEPTANCE OF PGT&C.
Since the Supplier has become aware of the existence of these PGT&C and has had the opportunity to receive
a copy (or download a copy in electronic format) of these PGT&C, the Supplier hereby expressly ascertains,
acknowledges, agrees and accepts the PGT&C. Without derogating from the foregoing, shipment of Products
by Supplier constitutes acceptance of PGT&C and the terms and conditions set forth in any Order and/or
Agreement, as the case may be. In any case, Prodalim's offer to purchase is always subject to Supplier’s
acceptance of PGT&C. Supplier’s execution of an Order and/or an Agreement constitutes acceptance of
PGT&C, and precludes Supplier’s objection to any such terms and conditions and/or Supplier’s inclusion of
any different or additional terms or conditions except the ones expressly accepted by Prodalim in written
amendment and signed by both Prodalim and Supplier before any such shipment. By accepting an Order and/or
Agreement or by shipping Products in response to an Order and/or Agreement, Supplier agrees that Prodalim
is not bound by and shall never be held bound by any general terms and conditions of Supplier that could be
attached to any written acknowledgment, invoice or otherwise. All sections of the governing law that expressly
or implicitly protect Prodalim and are not in conflict with any term hereunder are hereby incorporated by
reference. These PGT&C, the Agreement(s) and the Order(s) contain all of the terms of the commercial relation
between Supplier and Prodalim and supersede all prior oral or written representations, agreements and other
relation between Supplier and Prodalim, and each of them may be only amended in writing signed by both
Prodalim and the Supplier. In case of conflict between a provision of an Order or an Agreement and a provision
of these PGT&C, the provision of the Order or of the Agreement, as the case may be, shall prevail. The issuance
of an Order by an Affiliate shall constitute only such Affiliate’s agreement. Therefore: (1) only the said
Affiliate shall be bound by the terms of that Order and said Affiliate shall be the only beneficiary of all
provisions of that Order; and (2) neither Prodalim nor any other Affiliate other than the specific Affiliate that
issued the Order shall have any obligation or responsibility to Supplier with respect to the Products
contemplated by such Order, including, but not limited to, the payment for the Products.
4. ORDER CANCELLATION.
Prodalim reserves the right to cancel an Order (or any part thereof) without penalty by written notice of at least
5 days before the delivery date (and after such date if Prodalim has reason to request adequate assurance of
due performance and the said assurance (to the satisfaction of Prodalim) is not forthcoming within 10 days
after Prodalim’s request). In the case of any delayed delivery of the ordered Products, Prodalim may cancel
the unreceived part of an Order at any time. If Supplier can fulfil its delivery obligation only by premium
freight, Supplier will prepay such premium freight. If Supplier ships the Products before the shipment date or
after an Order cancellation, Prodalim may, in its sole discretion, refuse the shipment, or accept such Products
that shall be deemed non-conforming Products, according to section 6 of these PGT&C.
If Supplier's acceptance of a purchase order (or any other order for the purchase of Products from Supplier,
including any amendments thereto) deviates from Prodalim’s Order, Supplier is obliged to expressly and in
writing call Prodalim’s attention to the change in Prodalim’s Order. In such an event, the agreement and/or
purchase order for the purchase of Products from Supplier (including any amendments thereto) between the
parties will be finalized only on the basis of Prodalim’s specific written consent to the modification of its
original Order.
5. PERFORMANCE.
Supplier shall duly perform Prodalim's internal rules and regulations, as shall be adopted by Prodalim from
time to time (“Rules”). Consequently, the Products shall be produced, labelled, packaged, tested, delivered
and sold in full compliance with the said Rules that the Supplier declares and acknowledges to ascertain and
accept, as amended from time to time.
Supplier shall handover to Prodalim all necessary certificates under applicable Food Safety Regulations. In
particular, Supplier shall handover to Prodalim the following: HACCP (mandatory), ISO22000 (mandatory),
ISO9001 (optional), GMP (optional) and any other certificate required by all relevant governmental
authorities. In any case, Supplier guarantees that Products are conforming with all regulatory provisions which
apply to the use and the type of the Products, with all food and beverage law provisions and in particular with
the following: (1) Dir. 94/1962/EC, German Regulation implementing the said Directive and any further
implementation and/or amended EU/German legislation; (2) Dir. 12/2012/EU, laying down rules for the
implementation of Directive 2001/112/EC, German Regulation implementing the said Directives and
any further implementation and/or amended EU/German legislation; and (3) the following EU Regulations:
1169/11, 1829/03, 1830/03, 915/23, 396/05, 1935/04, 2023/06, 10/11, as modified by reg. EU 213/18, 1895/05,
282/08 and any further European legislation on the matter. In the case of non-compliance of the said Rules,
laws and/or regulations, Prodalim reserves the right to stop fulfilment of any Agreement and/or Order (or any
part thereof) at once until the compliance can be re-established. Depending on non-compliant severity,
Prodalim may terminate the Agreement(s) with the non-compliant Supplier and/or any Order(s) issued
thereunder (or any part thereof). In any case, Products that do not fully comply with the said Rules, laws and/or
regulations shall be deemed to be non-conforming Products, according to section 6 of these PGT&C.
6. NON-CONFORMING - UNORDERED - UNSAFE - UNFIT PRODUCTS.
Non-conforming and unordered Products. Without limitation of different rights and remedies available,
Prodalim may, at its sole discretion, (1) return to Supplier, at Supplier’s risk and expense, unordered Products
and/or Products that do not conform to the PGT&C and the Agreement(s) and/or Order(s), including shipping
instructions and the agreed dates for shipment and delivery (“non-conforming Products”). In case of delivery
of non-conforming Products, Prodalim may require Supplier either to refund the price or promptly
repair/replace the non-conforming Products, at Supplier’s risk and expense; (2) retain the non-conforming
Products and set off losses and reasonable costs (such as of care and custody, transportation, inspection, receipt,
recall etc.) against any amount due to the Supplier; or (3) repair or replace the non-conforming Products by
services from a third party, and charge Supplier with the costs of such services. In case of delivery of unordered
Products, Prodalim will hold such excess Products at Supplier’s expense and risk for 10 days and await
Supplier’s instructions for disposition of the Products. If Supplier does not provide Prodalim instructions for
disposition of such excess Products within the aforementioned 10 days period, Prodalim may use or dispose
of such excess Products as it pleases and charge the cost of such disposition, if any, to Supplier. In no event
shall Prodalim pay or be under any obligation to pay for excess Products used or disposed. In any case,
Prodalim’s legal rights and claims such as, but not limited to, withdrawal, compensation for damages (in
particular replacement damages or reimbursement of expenses incurred in vain), as well as rights of recourse
pursuant to articles 478 and 479 BGB (German Civil Code) remain unaffected and are expressly reserved.
Unsafe and unfit Products. In case of delivery of unsafe and/or unfit Products, upon declaration of a
governmental agency that any of the Products or any of the ingredient of the Products, or any material included
in any packaging or if Prodalim, at any time, believes in good faith that any of the Products or any such
ingredient, material or packaging (1) is adulterated or misbranded under the applicable law, rules or
regulations, (2) fails to conform to an applicable standard or regulation issued, (3) doesn't conform with an
applicable consumer product safety standard, (4) has a reasonable probability of causing health consequences,
or (5) is otherwise unsafe or unfit for the intended use of the Products; in such case, without limitations of
different rights and available remedies, (a) Prodalim or Supplier, as the case may be, shall immediately inform
the other party by written notice about any such declaration and shall furnish copies of the said declaration and
of all relevant documents; and (b) Supplier shall stop using the ingredient or material in the Products or in the
packaging, as the case may be. In any case, if the reason for the declaration is Supplier's failure to produce the
Products in accordance with Prodalim’s specifications, Prodalim may refuse the Products and may terminate
the Agreement (in whole or in part), without liability, by giving a written notice to Supplier, which shall be
effective immediately upon its delivery.
7. BACKORDERS.
Suppliers shall not backorder any Products subject to an Order and/or Agreement without Prodalim’s prior
written consent. Supplier must pay all shipping costs related to a backorder. All backorders should receive the
best pricing at either the time of the Agreement and/or Order or at the time of the shipment. These PGT&C
apply also to Products on backorder.
8. RIGHT OF TEST AND INSPECTION.
Prodalim will have the right to test and/or inspect the Products and reject any non-conforming Products within
8 business days of receipt of the Products. The inspection will not affect Prodalim’s right to revoke acceptance
or pursue other remedies if non-conformities are discovered later, even if the discovered non-conformity/ies
could have been discovered upon inspection. In the case that Prodalim rejects Products as non-conforming, the
quantities under the Order will automatically be reduced unless Prodalim otherwise notifies to Supplier.
Supplier shall not replace quantities rejected without a new Order from Prodalim. Non-conforming Products
will be held by Prodalim at the disposal of Supplier at Supplier’s risk and cost. Payment for non-conforming
Products shall not constitute an acceptance thereof or a limit to Prodalim’s right to any available remedy, and
shall not relieve Supplier’s responsibility for defects (including apparent defects). The Supplier shall perform
reasonable amounts of testing and inspection with respect to each shipment of the Products to ensure the
Products comply with the requirements of the Order and/or Agreement, as applicable. Testing methods and
procedures shall conform to the standards that Prodalim provides to Supplier and any applicable law or
regulation of any competent governmental agency. Upon Prodalim’s first request, Supplier shall immediately
communicate to Prodalim a copy of the results of each test and/or inspection, and a certificate of analysis.
9. REPRESENTATIONS, WARRANTIES AND GUARANTEES.
Supplier agrees, represents and warrants to Prodalim, its customers and assigns that from the date of the Order
and/or Agreement, as applicable, the following declarations are correct and true: (1) Supplier has all necessary
experience, qualifications, expertise, licenses, permits and certificates sufficient in all respects to perform its
obligations under the Agreement and/or Order, as the case may be in accordance with applicable law, the
Order(s)/Agreement(s) and industry best practice (the “Certifications”). Said Certifications are valid and
effective, and Supplier guarantees that there is no current proceeding or potential proceeding or claim to revoke
such Certifications; (2) Supplier is and, at the time of each delivery of the Products will be, solvent; (3) Supplier
and/or its agents have not offered/given any reward, fee, gift or tip to any employee of Prodalim; (4) Supplier
is and continue to be in compliance with all applicable laws, orders and regulations that prohibit discrimination
against any employee because of race, colour, religion, sex, sexual orientation, gender identity, national origin,
age, disability or the like; (5) Supplier refrains from providing products directly or indirectly to Prodalim’s
customers at a lower price than the price provided by Supplier to Prodalim for similar products; (6) the prices
fixed and agreed on the Order and/or Agreement, as the case may be, are not higher than prices charged to
other Supplier's customers for similar quantities and similar conditions; (7) Supplier is not performing the
Agreement and/or the Order as an agent for any third party; (8) the Products and all materials furnished in
connection with the Products are merchantable, of good material, workmanship and quality, fit for the purposes
for which Prodalim intends them and free from defects; (9) the packaging conform to any specifications,
standards, criteria, labelling or other requirements agreed in the Order and/or the Agreement, as the case may
be, or as otherwise specified or agreed with Prodalim; (10) Products, their manufacture, packaging, labelling,
branding and any services provided in connection with the sale of the Products comply with applicable law,
regulations and standards. Supplier shall immediately offer to Prodalim copies of documents that Supplier
receives from any sources suggesting, implying or indicating that the Products are non-conforming to the
above said requirements; (11) Supplier has adequate quality, safety, and security procedures that will assure
that the Products will comply with the agreed representations, warranties a guarantees; and (12) Supplier will,
at all time, comply in all respects with Prodalim’s Code of Conduct, as shall be in effect from time to time,
which defines the principles and ethical standards for Prodalim's suppliers. Supplier’s representations,
warranties and guarantees shall be deemed to have been given not only to Prodalim but also to any of
Prodalim’s customers, Affiliates, its and their successors and assigns and to end-users of the Products. Supplier
passes on to Prodalim, Prodalim’s customers, Affiliates, its and their successors and assigns and to the end
users of the Products all representations, warranties and guarantees given to Supplier by those from whom
Supplier purchased the Products.
The above said representations, warranties and guarantees are in addition to any other warranties under these
PGT&C, the Order and/or the Agreement (as the case may be) or under any applicable law and each such
representations, warranties and guarantees shall survive Prodalim’s payment and/or acceptance and/or
inspection of the Products and/or termination of any Order and/or Agreement. Supplier is responsible to offer
Prodalim any information that is or could be necessary or helpful to comply with any applicable law and/or
regulations concerning the Products.
10. CUSTOMER RETURNS.
If Prodalim has purchased Products for the purpose of resale and Prodalim’s customers return any of the
Products to Prodalim in consequence of any alleged defect or non-compliance with these PGT&C and/or the
Order and/or the Agreement, as the case may be, then Prodalim may return such Products (or any part thereof)
to Supplier as Prodalim shall deem fit and appropriate. Supplier will promptly accept the returned Products,
pay all freight, fee, costs for shipping and handling and any other cost or expenses incurred by Prodalim in
connection with the foregoing. Supplier shall give Prodalim full credit or cash refund, at Prodalim’s sole
discretion, for the price of the Products.
11. COUNTRY OF ORIGIN AND PLACE OF PROVENIENCE REQUIREMENTS.
Supplier warrants to Prodalim and declares that it complies (and shall at all times continue to comply) with all
state, provincial and local Country of Origin/Place of Provenience labelling and connected requirements,
including those required by the E.U. applicable law and regulations, and will provide to Prodalim all reasonable
assistance that the situation requires and all necessary information to enable Prodalim to comply with the
Country of Origin/Place of Provenience requirements related to Supplier’s Products. In particular, Supplier
will (1) label or include with all Products subject to the Country of Origin/Place of Provenience requirements
all the necessary Country of Origin/Place of Provenience information that is required to display or maintain;
(2) comply with all retention of documents and Product segregation standards required by the Country of
Origin/Place of Provenience requirements and by Prodalim; and (3) provide to Prodalim, at its first request,
the results of an audit of the system implemented by Supplier to comply with the Country of Origin/Place of
Provenience requirements performed by a third party acceptable to Prodalim.
12. SHIPMENT AND RISK.
Supplier shall be responsible for the Products to be professionally packed, including, without limitation,
sufficient and suitable packing (including, without limitation, lashing, fenders, etc. as may be deemed
appropriate), considering type of goods, destination, possible weather and route, etc. Supplier will be held fully
and exclusively liable for any loss or damage not paid by the marine insurer due to such insufficient and/or
unsuitability packing.
The following specific delivery terms shall apply to each delivery made by Supplier to Prodalim:
(1) Prodalim shall not be charged for packing or transport expenses that shall be paid by Supplier; (2) Supplier
shall include with each shipment a document listing each item and quantity separately, as indicated on the
Order and/or Agreement, as applicable; (3) Prodalim reserves the right to reject shipment and return Products
at Supplier’s sole expense if any container and/or any package are not adequate for reshipment and not marked
to meet requirements of existing labelling applicable laws, and/or existing weight and measure applicable laws
and/or any different applicable legal requirements. Each container and each package shall bear the name of
Supplier; and (4) If any governmental registration or approval is required for the Products, such registration or
approval shall be obtained by Supplier at Supplier’s expense.
Unless Prodalim agrees otherwise in writing, Supplier shall deliver the Products Delivered Duty Paid
(Incoterms 2020, as amended from time to time). If Prodalim manages the freight, its costs shall be deducted
from the delivered invoice. If Prodalim takes delivery of all or any part of the Products at Supplier’s facility,
the risk of loss shall shift to Prodalim only when Prodalim or its shipping agent leaves Supplier’s facility after
the delivery of the Products. Supplier shall use any mode of shipment, carrier and routing that Prodalim
specifies. Delivery shall be made in the quantities and at the times specified by Prodalim to Supplier in writing.
If Supplier delivers the Products before the scheduled delivery date, Prodalim may, at Supplier’s sole expense
and risk, either store them or return them to Supplier. Prodalim’s acceptance of an early delivery shall not
change the payment terms. Products delivered in excess of the ordered quantities or after the times specified
in Prodalim’s delivery instructions shall be deemed to be unordered products under section 6 of these PGT&C.
Notwithstanding anything to the contrary in these PGT&C, Order or an Agreement, any and all Products for
which Prodalim has already paid to Supplier shall be considered the sole and exclusive property of Prodalim.
The Supplier has no right of retention or any other similar right in respect of those Products.
Supplier will provide Prodalim in writing with the Order lead time applicable to the Products and represents
that such lead time will meet industry best standards for the same or similar Products. “Order lead time” means
the number of days from Order issuance date to the date the Products will be delivered to Prodalim’s facility
or such other place identified in the Order. Delivery dates, Order lead time and the agreed date for performance
of any other obligation of Supplier shall not be extended or excused for any reason, including any reasons
beyond Supplier’s control. In the event Supplier fails to meet the delivery date, Order lead time and/or the
agreed date for performance, then as partial relief for the damages to Prodalim (which remedy shall not be
exclusive of any other remedies at law, in contract or in equity), Supplier shall pay as liquidated damages to
Prodalim, at Prodalim’s option, an amount equal to 0,5 percent (0,5%) of the net value of the Order in respect
of which the delivery is late, for each day of delay until actual receipt of the Products by Prodalim (increasing
to 0,8 percent (0,8%) for each day of delay after 10 days of delay and until actual receipt of the Products by
Prodalim).
Prodalim and Supplier hereto acknowledge and agree that the sums payable under the above paragraph shall
constitute liquidated damages and not penalties and are in addition and without prejudice to any further
damages Supplier may be deemed liable for. In the event that the governing law provides for a lesser mandatory
limit to the quantification of liquidated damages referred to above, then, the quantification referred to above
shall be construed to be automatically reduced to the maximum quantification provided for and allowed by the
applicable law.
13. PAYMENTS AND PRODALIM'S CLAIMS.
After receipt of a duly issued invoice and after acceptance of Products by Prodalim, payment shall be made
within 15 business days. Prodalim may choose (but shall not be obligated) to pay according to discount terms
offered by Supplier. Prodalim’s payment of the purchase price does not constitute acceptance of Products. If
any payment is due on a non-business day or banking holiday observed in the applicable jurisdiction, the due
date shall be extended until the next applicable business day. Supplier shall give Prodalim a written notice of
any possible discrepancy in any amount paid by Prodalim within 60 days of such payment. If Supplier fails to
give such notice within such period, Supplier shall not thereafter assert any claim for such payment and
Supplier hereby irrevocably and unconditionally waive any such claim. All amounts payable to Supplier will
be subject to all Prodalim's claims arising from the Orders and/or Agreements and/or these PGT&C and/or any
other reason. Prodalim has the right to set off and deduct against any such amounts all present and future debts
of Supplier to Prodalim or its Affiliates. Supplier shall be deemed to have accepted each debit amount or
Supplier chargeback within sixty 60 days following receipt of notice of the said debit amount or chargeback,
unless Supplier communicates to Prodalim in writing the reason why the deduction is not correct and provides
sufficient documentation of the said reason. In any event, Prodalim will not be in default without receiving a
formal written request for payment from Supplier.
14. TAXES.
Unless Prodalim agrees otherwise in writing, Prodalim shall not be required to pay any sales, use or other taxes
(whether provincial, state, or local), assessments, fees or duties (collectively, “Taxes”), arising as a result of
Prodalim’s purchase from Supplier and Supplier shall be solely responsible and liable for paying any such
Taxes. In the case that said Taxes come into effect later then the date of the Order, any such Taxes shall be
paid by the party upon which the legal incidence of the Tax is imposed. If Prodalim agrees in writing to pay
any Tax, then the amount of the Tax shall be separately stated on Supplier’s invoice.
15. INDEMNIFICATION.
Supplier will indemnify and hold harmless Prodalim, its Affiliates and their directors, shareholders, officers,
employees, consultants, agents, contractors, representatives successors and assigns from any claims, actions,
demands, liabilities, losses, costs and expenses (including attorney’s fees) including, without limitation,
liabilities arising from any actual or alleged injury to or death of any person, damage to any property, and any
other damage or loss, by whomsoever suffered, including Supplier’s or Prodalim’s agents and/or employees
and/or customers, claimed to result, directly or indirectly, from (1) the Products, including Prodalim’s use,
shipment, storage, delivery, sale, or other handling of the Products, and/or (2) Supplier’s actual or alleged
breach of any of the representations, warranties, guarantees or other terms and conditions contained herein, in
the Order(s) and/or in the Agreement(s), as the case may be, except if such liability is caused by the sole gross
negligence or wilful misconduct of Prodalim. In addition to the foregoing, if any of the Products or any part
thereof is alleged to constitute infringement of a right of a third party, Supplier, at its own expense, will either
(1) procure for Prodalim, its Affiliates and their successors, assigns, and customers the right to continue using
such Products, (2) replace the Products with non-infringing items, or (3) in further alternative to option (1) and
(2) above, refund the purchase price for the Products and pay all related expenses and costs. Supplier will also
be obliged to reimburse Prodalim for any expenses arising from or in connection with a warning and/or recall
campaign conducted by Prodalim. Prodalim will notify the Supplier of the subject and scope of the warning
and/or recall campaign before the start of such campaign, in any event to the extent and when possible and
reasonable.
16. PRICING.
All pricing is based on Prodalim’s purchase Order issuance date. The price to be paid by Prodalim stated on
any Order or Agreement, as applicable, shall not be increased unless specifically authorized in writing by
Prodalim. Supplier shall ensure maximum accuracy of all invoices submitted. Any marketing, purchasing
volume or related programs offered by Supplier to Prodalim on one or more Products will be applied at the
same respective rates to any other Products that Prodalim purchases from Supplier that are the same or similar
to the original Product. Notwithstanding anything to the contrary in these PGT&C, an applicable Agreement
and/or applicable Order, Prodalim and the Supplier hereby acknowledge and agree that tariffs related to
Products procured under any Order or Agreement are subject to fluctuations and hereby agree that any
fluctuation which results in a reduction on tariffs related to the Products under an applicable Order or
Agreement will be passed through to Prodalim as a reduction in the price under said applicable Order or
Agreement.
17. FORCE MAJEURE.
Prodalim and the Supplier agree that the latter is excused from non-performance or delays in delivery caused
by acts of God, unforeseeable occurrences or other force Majeure events, but Prodalim and the Supplier also
agree that the latter is not excused by unexpected difficulty or commercial impracticality of any degree.
Prodalim reserves the right to reject any shipment of any order of goods from Supplier and shall have no
obligation to pay for the rejected shipment in the event that Prodalim’s business or operations are discontinued
in whole or in part by reason of fire, flood, earthquake, war, civil disorder or any other act or event beyond
Prodalim’s reasonable control.
18. TERMINATION CLAUSE.
If at any time (i) Supplier defaults in the performance of any of Supplier’s obligations to Prodalim under the
Agreement or under the Order or under these PGT&C or under any other agreement between Supplier and
Prodalim (in whatever form) and Supplier fails to cure the default within a reasonable time after Prodalim
provides notice of the default to Supplier; (ii) Supplier refuses to perform the Agreement or the Order; or (iii)
any warranty or representation that Supplier has made to Prodalim in consequence of the signature of the
Agreement or the Order, as the case may be, is false or misleading (Sections 9, 11 and 12); then by written
notice to the Supplier with immediate effect, Prodalim may terminate the Agreement and/or any subsequent
Order, in whole or part, without liability, and Supplier shall immediately pay to Prodalim all damages and
costs that Prodalim incurred or may incur as a result of the termination and as a result of the event or
circumstance on the basis of which Prodalim terminated the Agreement or the Order, as the case may be.
Furthermore, Prodalim may immediately terminate the Agreement and/or any subsequent Order without
liability in the event of the occurrence of any of the following events or any other comparable event: (a)
insolvency of the Supplier; (b) filing of a voluntary petition in bankruptcy by Supplier; (c) filing of an
involuntary petition in bankruptcy against Supplier.
19. CONFIDENTIALITY.
Supplier agrees that any technical information disclosed to Prodalim in connection with the Products covered
by any Order and/or Agreement is not confidential and Supplier will not assert any claim against Prodalim
with respect to that information. Any information disclosed by Prodalim to Supplier is confidential and
Supplier agrees to keep it in strict confidence and not to use or disclose any such information without the prior
written consent of Prodalim which may be withheld at any time and for any reason. Supplier shall not disclose
or use or permit to be disclosed or used by any third party (including any of Supplier’s suppliers and
employees) any information, standards, performance criteria or other requirements for the Products or any
information concerning Prodalim’s business, operations or activities, including, without limitation,
information concerning Prodalim’s present or proposed products, product developments, plans, strategies,
finances, know-how, sales, customers, suppliers, recipes, Prodalim’s marketing or sales techniques, or the
existence of the Agreement or the Order, provided, however, that Supplier may disclose confidential
information (a) to the extent necessary to enforce its rights under the Agreement or to defend a claim arising
under the Agreement; and (b) as required by applicable law, in such event the Supplier shall provide Prodalim
with a written notice setting forth the nature of the required disclosure prior to the disclosure thereof and in
any event the Supplier will furnish only that portion of the confidential information which is legally required
to disclose. Further, the Supplier agrees not to make any copies of the confidential information on any type of
media, without the prior express written permission of Prodalim.
20. INSURANCE.
Supplier shall maintain in effect, at its own expense a commercial general liability insurance coverage that will
protect Supplier and Prodalim from any and all claims and liabilities for property damage, personal injury,
death or economic damage, to any person, that arises from the Supplier’s Products, their use or consumption
or the performance of the services or any activities connected with the Products. The limits of the said liability
insurance coverage must be agreed with Prodalim and accepted by Prodalim.
21. EXPORT AND IMPORT REQUIREMENTS.
Supplier shall prepare, maintain and, to the extent that applicable law, regulation or customs authority requires
it to do so, submit to the applicable customs authorities, all information and documentation that is necessary
to comply with the applicable customs and export and import requirements of each country from which the
Products will be exported and each country into which they will be imported, and Supplier shall comply with
all other applicable customs requirements. Upon Prodalim’s first request, Supplier shall immediately furnish
to Prodalim copies of that information and documentation. Supplier is solely responsible for complying with
all technical compliance and Country of Origin requirements of each country into which the Products are to
be imported.
22. SEVERABILITY.
If any provision of the Agreement, the Order or these PGT&C, as the case may be, is deemed to be invalid or
unenforceable, then (i) all other provisions of the Agreement, the Order or these PGT&C, as the case may be,
shall remain in full force and effect; and (ii) such provision shall be modified to the minimum extent necessary
to cure such defect and make such provision valid and enforceable.
23. REMEDIES.
The remedies in these PGT&C shall be deemed to be in addition to any other remedies allowed to Prodalim
under any applicable law. The failure of either party to require performance by the other party of any provision
of the Order and/or Agreement and/or these PGT&C shall in no way affect the right to require such
performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of the
Agreement and/or Order and/or these PGT&C constitute a waiver of any succeeding breach of the same or any
other provision.
24. ASSIGNMENT.
Supplier shall not assign any of its rights or delegate, subcontract or assign any of its duties under the
Agreement and/or Order without Prodalim’s prior written consent, which may be withheld at any time and for
any reason. Prodalim’s consent to Supplier’s delegation, subcontracting or assignment of any obligation of
Supplier under the Agreement and/or Order, as the case may be, shall not relieve Supplier of its responsibility
or liability for performance of the Agreement and/or Order, as the case may be.
25. GOVERNING LAW AND JURISDICTION.
The validity, interpretation, and performance of these PGT&C, the Agreement(s) and/or subsequent Order(s)
shall be governed in all respects by the German law, without giving effect to conflicts of law principles that
would result in the application of the substantive laws of another jurisdiction. Prodalim and the Supplier hereby
agree that any action, proceeding or claim against each other arising out of or relating in any way to these
PGT&C, Agreement(s) and/or subsequent Order(s) shall be brought and enforced in the courts of Mannheim,
and they irrevocably submit to such jurisdiction, which jurisdiction shall be exclusive. Notwithstanding the
foregoing, Prodalim always reserves the right to sue Supplier also in courts having jurisdiction over the
Supplier itself, according to where Supplier has its registered or effective office. The stipulations specified in
the Convention of International Sale of Goods of 11 April 1980 are not applicable.
****