FoodChain ID Testing U.S
This Service Proposal (“Proposal”) is between the FoodChain ID Group, Inc., located at 504 North 4th Street, Fairfield, Iowa 52556 USA (“FoodChain ID”) and Client, located at the address listed on the Proposal. FoodChain ID and Client are collectively the “Parties.” The Proposal identifies the Parties’ rights, obligations, and understanding regarding the Service as identified in the attached Proposal.
- 1. Confidentiality. During the Proposal period, Client and FoodChain ID may obtain the other’s proprietary and confidential information. Each party agrees to protect the other’s confidential information with the same degree of care that it gives to its own confidential information but with not less than reasonable.
a. The Client’s Confidential Information: FoodChain ID may acquire or develop confidential information relating to the Client, including the status of Client products, practices within its facilities, information disclosed by Client, and other technical and business information about it or its vendors.
b. FoodChain ID owes the Client a duty to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out the services for the Client consistent with FoodChain ID’s Proposal with the Client. The Client agrees and consents in writing to the release of any such confidential or proprietary information related to the formulas or the audit results to FoodChain ID, as may be necessary for FoodChain ID to complete its Proposal service. FoodChain ID agrees to protect such proprietary information of the Client with the same degree of care that it gives to its own confidential information but not less than reasonable care. FoodChain ID also agrees not to release confidential information to any party without the express written consent of the Client which may be the legal or rightful owner of such proprietary or confidential FoodChain ID shall notify Client immediately upon discovery of, or suspicion of, (i) any unauthorized use or disclosure of Confidential Information by FoodChain ID or its representatives; or (ii) any actions by FoodChain ID or its representative inconsistent with its obligations under this Proposal , FoodChain ID shall cooperate (means took reasonable steps to assist the Client to rectify the error) with any effort of the Client to help the Client regain possession of Confidential Information and prevent its further unauthorized use.
c. FoodChain ID’s Confidential Information: The Client may obtain proprietary and confidential information from FoodChain ID, which includes FoodChain ID’s forms and documents, questionnaires, written and oral advice, methods of verification and other aspects concerning the Proposal service, and constitutes the intellectual property of FoodChain ID. The Client may disclose all FoodChain ID information to persons who are under a duty of confidentiality at least as stringent as the Client’s hereunder, and who have a need to know such information in connection with the Client’s business purposes, provided that such disclosures by the Client of FoodChain ID’s proprietary and confidential information (including forms, documents and questionnaires) shall not be made to other administrators of any program similar to or competitive with FoodChain ID by allowing such administrators to use the Client’s passwords to access its data online or otherwise.
FoodChain ID’s services, including FoodChain ID processes and its online data acquisition and management system (including the specific fields and definitions in the questionnaire and the reporting formats used) are based on information and standards owned by FoodChain ID and shall remain the property of FoodChain ID or, as applicable, and the Client shall have no rights therein.
d. Confidential information of a party does not include information that a party can establish by written records is (i) in the public domain through no fault of receiving party, (ii) known to the receiving party prior to disclosure by the disclosing party, (iii) transferred or disclosed to the receiving party by a third party without violation of the disclosing party’s rights, and (iv) developed by a party without reliance on the disclosing party’s confidential information.
e. Permitted Disclosures: Notwithstanding the foregoing, the following permitted disclosures are agreed upon:
i. The information received from the Client, and FoodChain ID’s advice or information provided to the Client, may be aggregated with other information in the FoodChain ID database and used by FoodChain ID and/or on a purely no-name basis where the Client’s or any particular product’s identity is not disclosed or identifiable by those familiar with the industry in any such summary or aggregation report during the term of this Proposal and thereafter without regard to termination of this Proposal agreement.
ii. Applicable only to consumer facing Verification and/or Certification programs: Once the Client’s service is completed by FoodChain ID as in compliance with the Proposal, the Client’s brand and trade names, marks, and Client-supplied logos may be disclosed to the public by FoodChain ID. Client would receive advance notice prior to use.
f. In the event that any party receives a request to disclose all or any part of the confidential information of the other under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental or banking regulatory body, unless unlawful to do so, the receiving party shall promptly notify the disclosing party so it may seek a protective order and, at no out-of-expense to the receiving party, cooperate with the disclosing party in obtaining the protective order, and only release pursuant to the subpoena or order so much of the confidential information as is necessary to comply with the subpoena or order.
g. In the event of any breach or threatened breach of the confidentiality provisions above, the non-breaching party shall be entitled to a temporary or permanent injunction, without the necessity of posting any bond or other security, in addition to any monetary damages that may be awarded.
h. Each party shall be responsible for any breach of confidentiality by any person that received a party’s confidential information from the other party (“Representatives”), which includes Representatives who subsequent to obtaining the confidential information become former Representatives of the other party. Each party shall take, at its sole cost and expense, all reasonable measures, including but not limited to court proceedings, to restrain its Representatives from unauthorized disclosure or use of the confidential information. Except for disclosure to its Representatives under the conditions noted above or as otherwise permitted under this Proposal, each party shall retain the other party’s confidential information in secret, shall not utilize the confidential information for the benefit of the receiving party or any third party, and shall not divulge, furnish, or make accessible the confidential information to any third party.
i. Each party’s obligations respecting the confidential information disclosed by the other party shall remain in effect (i) with respect to a trade secret (which, for the avoidance of doubt, includes without limitation Client formula, ingredient sourcing and product processing information), for so long as such information remains a trade secret under applicable law and (b) for all other confidential information, for a period of ten (10) years from the date of disclosure of said confidential information.
- 2. Payment Terms. In the event that credit has been granted by FoodChain ID, Customer will pay all invoiced amounts within the stated term (Net 30 payment terms for all services) of the invoice date as indicated on the invoice. Customer agrees to pay all collection costs, including reasonable attorney’s fees and court costs incurred by FoodChain ID Testing in collecting such past due amounts. FoodChain ID, in addition to any other remedies available, may suspend all further services for Customer until all past due amounts, late payment charges, and collection costs are paid.
- 3. Limitation of Liability/Indemnification. The Client understands any certificate issued by FoodChain ID hereunder is based on FoodChain ID’s determination that, to the best of FoodChain ID’s knowledge, the Client is operating in compliance with the applicable program. The Client further understands that, among other things, testing product samples is not a guarantee that all product(s) will conform to the analysis results of levels of the samples that are tested, and product may otherwise fail to satisfy applicable requirements of laws or contracts.
THE MAXIMUM LIABILITY OF FOODCHAIN ID TESTING AND ANY OF ITS EMPLOYEES, DIRECTORS, CONTRACTORS, OR OTHER REPRESENTATIVES FOR ACTS OR OMISSIONS IN CONNECTION WITH ANY ANALYSIS, TESTING, OR OTHER SERVICES FOR CUSTOMER SHALL BE THE AMOUNT PAID BY CUSTOMER (OR ITS AFFILIATE OR SUBSIDIARY) FOR THE ANALYSIS, TESTING OR OTHER SERVICES THAT RESULTS IN CUSTOMER’S LOSS. THIS LIMITATION SHALL NOT APPLY TO: 1) GROSS NEGLIGENCE OR MORE CULPABLE ACTS OR OMISSION (INCLUDING RECKLESSNESS OR WILLFUL MISCONDUCT); 2) BAD FAITH FAILURE TO MATERIALLY COMPLY WITH ANY OF THE MATERIAL OBLIGATIONS SET FORTH IN THIS AGREEMENT; OR 3) FRAUD. THE FOREGOING WARRANTY AND AGREEMENT IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, AND FOODCHAIN ID TESTING SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY DAMAGES IN THE NATURE OF LOST PROFITS, OR FOR INJURY OR HARM TO ANY PERSON.
- 4. Indemnification. The Parties hereby agree to defend, indemnify and hold the other party, its affiliates, licensors, contractors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns harmless from any third party claims, liabilities, damages, demands, judgments, awards, losses, costs, expenses, or fees, including reasonable attorneys’ fees, arising out of or relating to a party’s violation of this Proposal, gross negligence, or willful misconduct, and/or the party’s violation of any law or the rights of any third party.
- 5. Subcontracting. FoodChain ID may subcontract all or any portion of its services to one or more third parties, and may assign this Agreement to any related party or purchaser of all or substantially all of FoodChain ID’s business or assets. Otherwise, neither party may assign or transfer any right or obligation under this Agreement without the prior written consent of the other party.
- 6. Force Majeure. Neither party is responsible for delay or failure to perform resulting from acts beyond such party’s reasonable control (“Force Majeure”) and the party’s obligations that cannot be reasonably performed shall be suspended for the Force Majeure period. Force Majeure includes but is not limited to acts of God, government acts or omissions, war, riots or strikes, epidemics, fires, floods, or other disasters.
- 7. Third-Party Representation. If either party uses a third-party (for example, but not limited to, an independent contractor, broker, or other non-employee representative and/or agent) representative and/or agent to act on its behalf under this Proposal and in its interactions with the other party, then the parties agree (1) the party will disclose the identity of this third-party to the other party; (2) the party understands this is an ongoing obligation and if they create or terminate a third-party representative relationship throughout the term of this Proposal that the party will disclose these changes to the other party.
- 8. Disputes/Governing Law. Any dispute(s) arising out of or relating to this Agreement shall be governed by the laws of the State of Delaware. Either party may seek recourse to the state or federal courts situated in Delaware to enforce the confidentiality provisions of this Agreement. In the event of any dispute, the prevailing party shall be entitled to all costs of resolving the dispute, including reasonable attorney’s fees. In the event FoodChain ID incurs any expenses, including reasonable attorney fees, resulting from collecting past due invoices, such expenses, costs and fees shall be borne by the Company.
- 9. General. If any provision of this Proposal is determined to be void or overbroad, such provision shall be automatically reduced in scope to the maximum legal protection that could be obtained by Client to protect its Confidential Information and the remainder of the Proposal shall remain in full force and effect.
- 10. Counterparts. This Proposal may be executed in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. A PDF or any other type of copy of an executed version of this Proposal signed by a party is binding upon the signing party to the same extent as the original of the signed agreement.
- 11. Titles. The titles used in this Proposal are used for convenience only and are not to be considered in construing or interpreting this Proposal.
- 12. Entire Proposal. This Proposal shall constitute the entire understanding of the parties with respect to the Confidential information and supersedes any prior agreements, understandings regarding the subject matter hereof. No modification, amendment, or waiver may be accomplished to the terms of this Proposal without the prior written consent of both parties. No failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other further exercise or the exercise of any other right, power or privilege hereunder. This Proposal may be executed and delivered in counterparts and via facsimile or other electronic transmission, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same document.
FoodChain ID Testing GmbH
FOODCHAIN ID TESTING GmbH
Tel. +49 89 7208046-30
- 1. Scope of application
- All testing and inspection services (hereinafter referred to as “services”) or service offers (hereinafter: “offers”)* and all contractual relations resulting therefrom between FoodChain ID Testing GmbH and the customer; (hereinafter referred to as “FoodChain ID”) and the natural/legal person from whom it has received the order (hereinafter referred to as “Customer”) are subject to these General Terms and Conditions (hereinafter referred to as “GTC”).
- Deviating agreements and verbal collateral agreements shall only become binding with the prior written consent of FoodChain ID.
- 2. Order placement and execution
- FoodChain ID shall perform its services with due diligence in accordance with the test procedures defined in the offer and confirmed by the customer by placing an order or in accordance with the specific requirements of the customer, insofar as these are deemed appropriate and confirmed by FoodChain ID. In the absence of an offer and other specific customer instructions, the order can be carried out or rejected at the discretion of FoodChain ID.
- The order can be placed by the client in writing, by telephone or by sending the sample(s). The order shall be deemed to have been accepted if FoodChain ID accepts it in writing or verbally. Any change or adjustment requests made after the order has been placed can influence the processing time and costs. The contract shall be deemed accepted with the order confirmation.
- FoodChain ID is entitled to assign the ordered services to a subcontractor in whole or in part after prior consultation with the customer. The customer authorises FoodChain ID by its consent to disclose to the subcontractor all information necessary for the performance of the services transferred.
- FoodChain ID is authorised by the customer to obtain from participants, authorities and third parties the information necessary for the preparation of the expert opinion confidentially and neutrally and to carry out surveys. If necessary, the customer shall grant FoodChain ID a special power of attorney for this purpose.
- The customer authorises FoodChain ID to pass on test or inspection reports to third parties if this has been commissioned by the customer or if, at the discretion of FoodChain ID, this results tacitly from the circumstances or from traffic or commercial practice.
- 3. Processing times
- “Standard analysis times” stated in offers apply from the time of receipt of the sample in the laboratory but are for guidance only and do not constitute binding commitments
- Binding date commitments can be agreed in writing in individual cases. In the event that a period (time span) for delivery of the service is agreed, this period shall commence upon receipt of the sample(s) in the laboratory or, in the event of a service not to be performed on a sample, upon order placement. Compliance with the deadline or a defined date presupposes the timely fulfilment of the customer’s obligations to cooperate in accordance with 4.1.
- 4. Duties of the customer
- The customer must ensure that the samples, information, instructions and documents required for the performance of the services are provided to FoodChain ID in good time so that FoodChain ID can perform the required services in accordance with the contract.
- The costs and risks of sample delivery shall be borne by the customer, unless FoodChain ID has agreed to collect the samples. If the customer dispatches the samples, their packaging must be appropriate and in accordance with any instructions given by FoodChain ID.
- The customer must comply with the provisions on information, labelling, packaging, transport and disposal of hazardous waste and materials. FoodChain ID must be informed in advance of any known dangers or risks that may arise from the order. These include radioactive, toxic, explosive or otherwise harmful or environmentally harmful components; in this respect the customer shall be liable for any damage caused by dangerous properties of the sample material. Should costs arise for FoodChain for the proper disposal of hazardous materials and special waste of the samples provided by the customer, they are to be borne by the customer, regardless of whether the necessity for this was already known before the order was placed or not.
- 5. Work results and copyright protection
- All information provided in test reports shall be derived from the results of the test or inspection procedures applied in accordance with the requirements, methods or instructions referred to in point 2.1 and/or from the assessment of such results based on technical standards, commercial practices or other circumstances which FoodChain ID considers to be relevant.
- Test reports and expert opinions refer exclusively to the specified samples and do not make any statements about the rest of the lot or delivery from which the samples were taken, unless a representative sample was taken explicitly in accordance with an EU regulation or national regulation applicable to the respective test purpose. Test reports exclusively reflect the results or assessments determined at the time of the test in accordance with the scope of services commissioned. FoodChain ID is not obliged to refer to facts or aspects or to prepare reports about them which are not included in the scope of the commissioned services, investigations or procedures.
- FoodChain ID makes test reports available electronically, unless the customer explicitly wishes them to be transmitted in printed and signed form. The FoodChain ID’s responsibility for the content ends with the start of the transmission process. A falsification of these results by third parties outside the FoodChain ID access areas justify no liability of FoodChain ID. The regulation in point 10 remains unaffected. Electronically provided test reports are also valid without signature.
- FoodChain ID retains the copyright to the services provided – insofar as they are suitable for this purpose. The customer may only use the test or inspection reports or assessments with all calculations, tables, pictures and other details prepared in accordance with the contract for the purpose specified in the agreement. The customer is not entitled to change, edit, publish or use them only in extracts without the consent of FoodChain ID. This also applies to offers, brochures, catalogues, trademarks or other company documents or trademarks. The passing on of test or inspection reports or assessments to offices or other public institutions are permissible if and to the extent required by the purpose of the contract.
- FoodChain ID reserves its rights to all test methods, devices and/or equipment which it develops itself, unless these have been developed exclusively for the customer within the framework of a service provision agreed upon in writing.
- 6. Secrecy The customer and FoodChain ID undertake to keep the mutually disclosed trade and business secrets secret, not to pass them on to third parties without the written consent of the other party and not to use them for their own purposes without authorisation. FoodChain ID will treat as confidential any information received or obtained under the contractual relationship, unless it is in the public domain or they were already known to FoodChain ID or they have been disclosed to FoodChain ID by a third party without breach of confidentiality. FoodChain ID is authorised to use the results of investigations in anonymous form for scientific purposes, to publish them and to statistically evaluate them for internal company purposes.
- 7. Ownership and storage of samples All samples become the property of FoodChain ID upon receipt. Samples are stored for a period of 3 months, unless they are samples requiring refrigeration or samples for microbiological testing, which are stored for only 4 weeks at a time, or unless otherwise agreed between the customer and FoodChain ID. After expiry of this period, the samples will be disposed of – unless the customer wishes them to be returned – whereby the responsibility of FoodChain ID for the samples expires at the same time. If the customer wishes the samples to be returned, he must pay a handling and freight charge and bear the costs of the return.
- 8. Prices and terms of payment
- If no specific price agreements have been made prior to placing the order, the customer will be charged the currently valid standard rates of FoodChain ID. All prices are exclusive of the applicable statutory value added tax. FoodChain ID reserves the right to separately invoice packaging and transport costs for the shipment of sample containers or other aids
- The preparation of test reports will be invoiced separately. Subsequent changes or additions to orders already placed as well as changes or new issues of invoices at the customer’s request will also be invoiced separately.
- Customs clearance is the responsibility of the client. If the customer insists on processing by FoodChain ID or a broker commissioned by FoodChain ID, the customer shall bear the resulting costs plus an administration fee appropriate to the expenditure.
- For costs for storage and return of samples see point 7, for costs for disposal of hazardous materials and special waste see point 4.3.
- The customer must make payment to FoodChain ID for all duly invoiced charges within 14 days of the invoice date or within any period specified on the invoice. All invoices are payable in full net, free of any and all commission or other costs. In case of transfer of funds from abroad, in-country taxes occurring in the country of the Client and all bank fees caused by the transfer are to be paid by the Client. Any complaint relating to an invoice must be made within 14 days of receipt of the invoice. If the customer doubts the correctness of an investigation result, he is not entitled to withhold payment unless the defectiveness of the examination result and the resulting counterclaims of the customer are undisputed, accepted by FoodChain ID or legally established.
- If the customer is in default of payment, FoodChain ID reserves the right to charge reminder fees. In the event of noncompliance with payment conditions, FoodChain ID is also entitled to demand immediate payment of all payment claims.
- FoodChain ID’s claims may only be offset, or a right of retention asserted if the customer’s counterclaim is undisputed or legally established.
- 9. Cessation or termination of benefits FoodChain ID is entitled, without any liability on its part, to immediately or permanently suspend performance, terminate the contract without notice and reject the order if the customer does not fulfil the obligations arising from the contractual relationship despite a corresponding warning, even after a 14-day period and/or in the event of cessation of payments, agreement to avert insolvency, opening of insolvency proceedings, petition for Opening of insolvency proceedings or forced administration on the part of the Client. Regulation No. 10 shall remain unaffected thereby. FoodChain ID is entitled to remuneration for the partial service provided up to the time of termination.
- 10. Liability and Warranty
- FoodChain ID is neither an insurer nor a guarantor and refuses to assume the associated responsibility.
- The test or inspection reports prepared by FoodChain ID based on the information, documents and/ or samples provided by the customer or on his behalf serve exclusively the benefit of the customer. The client is responsible for drawing the necessary conclusions from the test or inspection reports. Neither FoodChain ID nor its employees or subcontractors shall be liable to the customer or third parties for any kind of actions that base on conclusions drawn or omitted from test or inspection reports and for erroneous investigations based on false, incomplete, unclear or misleading information provided by the customer.
- Claims of the client for damages are excluded. Excluded from this are claims for damages by the customer arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages caused by willful misconduct or gross negligence on the part of FoodChain ID, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfilment is necessary to achieve the contractual objective.
- In the event of a breach of essential contractual obligations, FoodChain ID shall only be liable for the foreseeable damage typical of the contract if this was caused by simple negligence, unless the customer’s claims for damages are based on injury to life, limb or health. These restrictions also apply in favour of the legal representatives and vicarious agents of FoodChain ID if claims are asserted directly against them. The provisions of the Product Liability Act shall remain unaffected.
- In the event of claims for damages, the customer must notify FoodChain ID in writing within 30 days of discovery of the circumstances giving rise to the damage. Claims of the customer are subject to a limitation period of one year from the beginning of the statutory limitation period.
- 11. Place of jurisdiction
- The law of the Federal Republic of Germany shall apply to contracts between FoodChain ID and the customer to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The statutory provisions limiting the choice of law and the applicability of mandatory provisions shall remain unaffected.
- The place of jurisdiction is Augsburg.
- 12. Data protection, secrecy
- The customer agrees that FoodChain ID may store the data of the customer and individual orders in compliance with the Data Protection Basic Regulation (DSGVO) in force since 25.05.2018 for customer administration and acquisition, appointment management, contract processing, service processing, invoicing of payment transactions by means of electronic data processing. The data will only be passed on to third parties after a corresponding written agreement with the client. The information required under Article 13 of the DSGVO applies.
- FoodChain ID undertakes to make available to the customer all results obtained in connection with the order. Information received or obtained will be treated confidentially unless it is publicly known or accessible or has already been disclosed to FoodChain ID by third parties without breach of the confidentiality obligation. The confidentiality obligation shall not apply if a contracting party or a party is legally or officially obliged to disclose information, provided that such obligation is communicated in writing to the other contracting party prior to disclosure.
Planegg, July 2022