GTCs

General conditions for deliveries and services

The

Foodforecast Technologies GmbH
Friesenplatz 4
50672 Cologne

(hereinafter referred to as "Foodforecast").

§ 1 Object and general conditions of Foodforecast's activities

(1) These terms and conditions for deliveries and services (hereinafter referred to as "Terms and Conditions") apply to all - including future - contracts for deliveries and services between Foodforecast and the customer. Conflicting or deviating terms and conditions of the customer are not binding on Foodforecast unless Foodforecast expressly agrees to their validity in writing. Any terms and conditions of the customer are hereby contradicted, even in the event that they are communicated to Foodforecast in a letter of confirmation or in any other way, or that Foodforecast provides deliveries or services to the customer without reservation or accepts services from the customer without reservation, without contradicting the terms and conditions of the customer again.

(2) Foodforecast provides a cloud-based AI solution that customers in the food sector can use to optimize orders and goods production, among other things ("Cloud Services"). The Cloud Services may be modified, discontinued or replaced by Foodforecast from time to time. Foodforecast will not degrade any material feature or functionality of the Cloud Services or discontinue the Cloud Services during a Contract Term without providing replacement Cloud Services, except as necessary to address (i) new legal requirements, (ii) changes imposed by Foodforecast's vendors or subcontractors, or (iii) security risks that cannot be resolved in a commercially reasonable manner. Foodforecast shall notify the customer of any such material deterioration or discontinuation of the Cloud Services as soon as possible. The client may terminate the individual contract for the relevant offer by giving written notice to Foodforecast within 30 days of receipt of the notice by the client of the deterioration or discontinuation.

(3) Foodforecast can also make use of third parties in the fulfillment of its tasks. However, Foodforecast remains responsible for the proper fulfillment of its contractual obligations to the client.

§ 2 Conclusion of contract; term; termination

(1) Unless otherwise specified in writing in the offer, Foodforecast is bound by its offers for 30 days from the date of the offer.

(2) After conclusion of the contract, Foodforecast grants the customer a non-exclusive, non-transferable, limited right to use these cloud services for the customer's internal business purposes during the respective contract term. The client may not (i) resell, transfer, sublicense, publish, lend or rent the cloud services or use a cloud service for the benefit of third parties without the prior written consent of Foodforecast, (ii) modify, alter or create derivative works of the cloud services, (iii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code of the Cloud Services, or (iv) use the Cloud Services for the purpose of developing or improving a product that competes with such Cloud Services. The restrictions described in this section do not apply if they conflict with applicable law.

(3) The parties agree the initial term of the contract upon conclusion of the contract. If nothing is stipulated in the offer, the contract shall be automatically extended by the duration of the initial term if it is not terminated by one of the parties no later than three (3) months before the end of the initial term or the subsequent extension period. In the case of a contract term of one (1) month, the notice period is four (4) weeks to the end of the month.

(4) The right of both parties to extraordinary termination for good cause remains unaffected. Foodforecast is entitled to suspend or restrict the client's or a user's access to and use of the cloud services in whole or in part with immediate effect if Foodforecast determines in its reasonable discretion that the use of the cloud services poses a security risk to the cloud services, Foodforecast or a third party or exposes Foodforecast or a third party to liability.

(5) Foodforecast may terminate the contract with immediate effect if the client is more than 60 days in arrears with an agreed payment or continues to culpably violate a provision of these terms and conditions or other agreements despite a written warning.

(6) The customer is only entitled to terminate the contract due to a breach of contractual obligations on the part of Foodforecast if Foodforecast has culpably failed to meet its contractual obligations despite two written warnings and after the expiry of a reasonable deadline set with the respective warning.

(7) Any notice of termination must be given in writing.

§ 3 Scope of services of Foodforecast

(1) During the term of the contract, Foodforecast only owes the customer the provision of those deliveries and services that are explicitly described in the offer.

(2) The cloud services provided by Foodforecast analyze the data provided by the client and create forecasts for the client based on this analysis (hereinafter referred to as "forecasts"). Foodforecast transmits the created forecasts directly into the client's ERP system or via another channel.

(3) Foodforecast owes an availability of its cloud services of at least 99% outside of maintenance windows. The aforementioned minimum values are determined retrospectively on an annual basis.

§ 4 Obligations of the client to cooperate

(1) The client is responsible for ensuring that Foodforecast is provided with all information, data and documents (hereinafter referred to as "data") necessary for the provision of services without being requested to do so, in good time and free of charge for Foodforecast, and that Foodforecast is informed of all processes and circumstances that are directly or indirectly relevant to its services. This also applies to processes and circumstances that only become known during Foodforecast's activities.

(2) The client will promptly respond to all inquiries from Foodforecast that Foodforecast deems beneficial to the provision of services. In particular, the client will provide the historical data required by Foodforecast with the content, format and scope specified by Foodforecast at the start of the project, but at the latest within three months of signing the contract, using the communication channel specified by Foodforecast.

(3) The client guarantees that Foodforecast has the necessary access to its ERP system to provide the service and that the data provided by the client can be read electronically and automatically.

(4) Foodforecast processes and evaluates the data provided to it by the client. In order to carry out this analysis and data processing, the client hereby grants Foodforecast the necessary rights of use to the transmitted data. Foodforecast and its subcontractors are entitled to collect and derive information, statistics and measurement data on the use, operation, support and maintenance of the cloud services or data provided (collectively "system information") and to use and pass on system information for the support, maintenance, monitoring, operation, further development and improvement of its products and services, to enforce its rights or for other purposes, even after the end of the contract. This requires that all derived system information is combined with other information in such a way that the client cannot be identified.

(5) If and insofar as the client acts as a franchisor within a franchise system and the contractual services are (also) to be provided for its legally independent franchisees, the client assures Foodforecast that it will make all necessary declarations and cooperate in order to enable direct cooperation between Foodforecast and the franchisees.

(6) The Client shall comply with the provisions set out in Annex 1 and ensure that all users of the cloud services also comply with them.

§ 5 Prices; terms of payment

(1) The customer owes Foodforecast the contractually agreed remuneration plus statutory VAT for the services owed under the contract and these terms and conditions.

(2) The billing modalities (monthly, quarterly, semi-annually or annually) result from the respective offer. Foodforecast will send the customer an invoice in accordance with VAT regulations. At the start of the contract, the client issues Foodforecast with a corresponding SEPA direct debit mandate for the collection of the remuneration due in each case. The client is in default at the latest 10 days after the due date of the claim, without the need for a reminder. If the payment deadline is exceeded, Foodforecast is entitled to charge interest at a rate of 9 percentage points above the respective base interest rate. Foodforecast reserves the right to assert further claims for damages caused by default.

(3) If the client is in arrears with payment which, in the opinion of Foodforecast, indicates that its claim is at risk, Foodforecast is entitled to demand advance payment for outstanding services. If the client is in arrears with payment for 3 (three) or more consecutive months, Foodforecast is also entitled to temporarily suspend the retrievability of the analysis results from the server. Foodforecast will immediately notify the client of the suspension, stating the reasons, and request the client to immediately settle the accumulated payment arrears. The suspension will be lifted as soon as the payment arrears have been settled and the customer has notified Foodforecast of this in writing, submitting suitable evidence. The client can avert all these legal consequences due to late payment by providing security in the amount of the jeopardized payment claim. The statutory provisions on default of payment remain unaffected.

(4) Any additional services ordered and any additional expenses incurred by Foodforecast due to changes requested by the client shall be remunerated separately by the client in accordance with the conditions set out in the offer.

§ 6 Offsetting; rights of retention

The Client is not entitled to set off any claims against claims of Foodforecast, unless the counterclaim is undisputed or has been legally established. Furthermore, the Client is not entitled to withhold payments or to suspend other obligations incumbent upon him, unless Foodforecast has substantially violated due obligations arising from the same contractual relationship despite written warning and has not offered adequate security. § Section 215 of the German Civil Code (BGB) does not apply. In case of defects of the delivery or service, the counter rights of the client remain unaffected.

§ 7 Warranty

(1) Foodforecast warrants that the Cloud Services will substantially include the features and functions described in the Individual Agreement. To the extent permitted by applicable law, Foodforecast's sole and exclusive remedy for any breach of this warranty shall be, at Foodforecast's option, to (i) restore the non-conforming Cloud Services to conform to this warranty using commercially reasonable efforts, or (ii) if such restoration is not commercially reasonable, terminate the Individual Agreement for the non-conforming Cloud Services and refund any prepaid fees for such Cloud Services on a pro rata basis for the remainder of the term of the Individual Agreement for such Cloud Services. The warranty for Cloud Services excludes (a) free offers and (b) incidents, problems or defects arising from data provided by the Client, third-party content or the use of the Cloud Services that are not in accordance with the terms of this Agreement.

(2) Foodforecast only assumes the limited warranties expressly stated in this agreement and excludes all other warranties, in particular implied warranties of merchantability and fitness for a particular purpose. Foodforecast makes no warranty that (i) reported errors will be corrected or support requests will be resolved to meet the requirements of the client, (ii) the cloud services will be uninterrupted, error-free, fail-safe, fault-tolerant or free of harmful components, or (iii) content, including the data provided and third-party content, will be secure or will not otherwise be lost or damaged. Promises about cloud services or features or functionalities in any communication with the Client constitute technical information and not a warranty or guarantee.

(3) The Client shall be responsible for assessing the suitability of the Cloud Services for the use intended by the Client and for selecting the offer required to achieve the results intended by the Client and to secure the use of the Cloud Services. By using the Cloud Services, the Client agrees that the Cloud Services will meet the Client's requirements to enable compliance with applicable laws. The Client shall, at its own expense, obtain all rights, consents and approvals from providers of software and services used by the Client in connection with the Cloud Services and required for such use. The Client confirms that individual contracts are not dependent on future features or functions of the Cloud Services.

(4) Foodforecast has no control over the client's processes or the creation, validation, sale or use of the client's (or a client's customer's) products or services.

(5) Foodforecast is not responsible for the data transmitted by the client. If third parties assert claims against Foodforecast that are based on a culpable violation of applicable law or this contract by the client, the client shall indemnify Foodforecast against these claims in full upon first request.

(6) Foodforecast is not liable for claims in connection with this agreement if such a claim is asserted more than two years after the first event giving rise to such a claim or should have been discovered by the client.

§ 8 Liability

(1) With the exception of liability under the German Product Liability Act (ProdHaftG), due to fraudulent concealment of a defect, due to a guarantee that Foodforecast has assumed for the quality of the deliveries or services, or for damages resulting from culpable injury to life, limb or health, Foodforecast is only liable to the customer for damages in the event of a breach of obligations arising from the contract concluded between Foodforecast and the customer in accordance with the following provisions, without, however, waiving the statutory requirements for such liability.

(2) Foodforecast is only liable for damages - regardless of the legal grounds - in the event of culpable breach of material contractual obligations and in the event of intentional or grossly negligent breach of other contractual obligations towards the client. Material contractual obligations are those obligations whose fulfillment is essential for the proper execution of the contract and on whose fulfillment the client regularly relies and may rely.

 

 

 

(3) In the event of a simple negligent breach of essential contractual obligations, Foodforecast's liability is limited to compensation for foreseeable, typically occurring damages.

(4) The above limitations of liability also apply to breaches of duty by or for the benefit of persons for whose fault Foodforecast is responsible in accordance with statutory provisions.

(5) A change in the burden of proof to the detriment of the client is not associated with the above restrictions.

§ 9 Compliance with export controls

(1) The obligations of foodforecast under this Agreement are conditioned upon the customer's compliance with all applicable export and re-export controls, embargoes and economic and trade sanctions laws and regulations, including, in any event, those of the United States and the European Union ("Export Laws"). The Client warrants that data provided by the Client is not subject to any trade restrictions (e.g. Classification "N" in the EU and "N" for ECCN or "EAR99" in the United States) and that any content of the Cloud Services, including the Data provided by the Principal, any Offerings provided under this Agreement and any derivatives thereof will not be (i) downloaded or accessed by a Sanctioned Person, (ii) exported re-exported (including any "deemed exports"), shipped, distributed, delivered, sold, resold, supplied or otherwise transferred, directly or indirectly, to any Sanctioned Person or otherwise in a manner contrary to the Export Laws, (iii) used for any purpose prohibited by the Export Laws, or (iv) used for any non-civilian purpose (e.g., armaments, nuclear weapons, nuclear power). (e.g., armaments, nuclear technology, weapons, any other defense or military use) unless permitted by the Export Laws or applicable governmental licenses or approvals. Notwithstanding the foregoing, the Client represents and warrants that (i) it is not a Sanctioned Person and (ii) it will not download or access any Products or Services or allow any third party to download or access any Products or Services from Sanctioned Countries. Client will review and update at least annually its list of Users who have access to a Cloud Service and confirm that none of these Users are Sanctioned Persons and that all Users continue to access Cloud Services in compliance with Export Laws. Foodforecast may carry out the necessary checks in relation to export laws, while the client undertakes to provide foodforecast with all necessary information promptly upon request. The client is responsible for providing and obtaining from the user all information necessary to ensure compliance with applicable export laws (e.g. applicable export list numbers). "Sanctioned Country" means a country or territory that is itself the subject or target of comprehensive trade or economic sanctions (currently Cuba, Iran; North Korea, Syria and the Crimea region of Ukraine)."Sanctioned Person" means any person (A) included on the Specially Designated Nationals and Blocked Persons List (SDN) maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC) or any other list of persons subject to export controls maintained by the U.S. Department of Commerce or the U.S. Department of State, the United Nations Security Council, the European Union or any member state of the European Union, or the United Kingdom; (B) operating, organized or located in a Sanctioned Country; (iii) the government of, or a government acting for or on behalf of, the government of Venezuela or a Sanctioned Country; or (iv) owned or controlled by one or more such Persons.

(2) If Client discloses to foodforecast any information (i) that is "Covered Defense Information" or "Controlled Unclassified Information" as defined in U.S. Government regulations, or (ii) that is subject to export laws requiring controlled data processing, Client will notify foodforecast personnel prior to any disclosure and use the notification tools and procedures specified by foodforecast.

(3) In the event that Customer fails to comply with any of the provisions set forth in this Section 10 or violates any export laws relating to foodforecast's offerings or intellectual property, foodforecast shall have the right to take appropriate action in accordance with the terms of this Agreement and pursuant to U.S. or applicable law. Further, Customer shall indemnify and hold foodforecast, its affiliates, subcontractors and agents harmless from and against any claims, damages, fines and costs (including attorneys' fees and costs) arising in any way out of any failure to comply with the provisions of this Section 10, including any violation or suspected violation of export laws.

(4) Foodforecast is not obliged to perform the services covered by this contract if this is prevented by national or international foreign trade or customs regulations or embargoes or other sanctions, in particular embargoes or other sanctions imposed by the United Nations, the European Union or the United States.

§ 10 Force majeure

(1) Events or circumstances of force majeure, which include in particular operational disruptions, fire damage, flooding, strikes and lockouts, disruptions to shipping, transport and receiving facilities, official orders and other events beyond the control of the parties, and which impair or prevent the provision of the service, shall release the party affected by this from its respective obligation to perform for the duration and scope of the effects. Deadlines affected by the events or circumstances of force majeure shall be postponed appropriately, at least by the duration of the disruptive effect.

(2) In such cases, the parties shall immediately agree on the expected duration and extent of the disruptive effect and coordinate with each other on how to proceed.

§ 11 Transferability of rights and obligations

Foodforecast is entitled to transfer the rights and obligations arising from this contract in whole or in part to third parties without requiring the consent of the client.

§ 12 Confidentiality

(1) Both parties undertake to maintain the strictest confidentiality with regard to all business and trade secrets of the other party or of the companies affiliated with the other party pursuant to Section 15 of the German Stock Corporation Act (AktG) of which they become aware or which become known to them, as well as information of the other party that is designated as confidential or that is recognizably to be treated as confidential due to other circumstances, even beyond the end of this agreement until such time as it becomes public knowledge, but for at least a period of 3 (three) years after the end of the term of the agreement, and not to use such information for purposes other than those under this agreement. § Section 4 (4) remains unaffected.

(2) Both parties shall carefully store the business documents handed over to them, protect them from inspection by third parties and return them at the end of this agreement. The assertion of a right of retention is excluded. Both parties shall impose the same obligations on their employees and any third parties.

§ 13 Dispute resolution; place of jurisdiction; choice of law

(1) The parties shall attempt to settle any disputes arising out of or in connection with the legal relationship between them immediately in good faith and in partnership through negotiation.

(2) If the parties do not succeed in settling the disputes arising through negotiation within 30 days after one party has requested the other in writing to enter into negotiations, both parties shall have recourse to the ordinary courts of law. The courts in Cologne shall have exclusive jurisdiction for all disputes arising out of or in connection with the legal relationship between the parties. Paragraph 1 does not affect the right of Foodforecast to apply for interim relief before the ordinary courts.

(3) The legal relationship between Foodforecast and the customer is governed by German law to the exclusion of the conflict of laws and the UN Convention on Contracts for the International Sale of Goods (CISG).

§ 14 Final provisions

(1) There are no verbal or written ancillary agreements.

(2) Amendments and additions to these terms and conditions through individual contractual agreements within the meaning of §305b BGB do not require any form. Otherwise, amendments or additions must be made in text form.

(3) The client allows Foodforecast to name them as a reference and in this context to use their name, logo and, if applicable, "testimonials" on the Foodforecast website and in Foodforecast presentations, as well as to advertise with their anonymized improvement figures.

(4) Should any provision of these terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions of these terms and conditions. The parties hereby agree to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic intent of the invalid provision. This also applies in the event of an unintended loophole.

Attachment 1

1. login data

They ensure as follows:

• not to pretend a false identity in order to gain access to the cloud services;
• Keep credentials and security tokens safe and protect them from unauthorized access, disclosure, or use;
• to use only your user account or the methods approved by us to access the Cloud Services;
• not circumvent or disclose the authentication or security measures of your user account, the underlying technology, or the corresponding hosts, networks, or accounts;
• ensure that the credentials are not shared with anyone else, but are used solely by the person for whom they were created. We may change the Registration Data if we reasonably determine that a change is necessary.

2. no illegal, harmful or offensive use or content.

You agree not to use the Cloud Services for any illegal, harmful, or offensive purpose, or to promote, facilitate, or encourage or incite others to use the Cloud Services for any such purpose; you further agree not to transmit, store, display, distribute, or otherwise make available any Content that is illegal, harmful, fraudulent, infringing, or offensive. Your use of the Cloud Services and the content you store thereon are subject to the following terms:

• You must not violate any laws, regulations or rights of others;
• You must not be harmful to others or to our reputation; this prohibition includes offering or distributing fraudulent goods, services, programs, promotions, get-rich-quick schemes, investment scams, phishing, farming or other fraudulent practices;
• not to enter, save or send hyperlinks or provide access to external websites or data feeds, including embedded widgets or other access options, for which you do not have permission or which are illegal;
• They must not be defamatory, obscene, abusive or invasive of privacy.

3. no violation of restrictions on use

You agree to refrain from the following actions:

• resell, transfer, sublicense, lend, lease, publish or use the Cloud Services to outsource business processes or other activities or to operate a time-sharing service (unless expressly permitted by us);
• reverse engineer, disassemble, decompile or otherwise modify, combine, tamper with, derive or create derivative works from the source code of the Cloud Services or its underlying technology (except to the extent this restriction is inconsistent with applicable law in your jurisdiction);
• access the Cloud Services from a location prohibited or subject to applicable sanctions or licensing requirements and/or (re-)export control laws and regulations, including the laws of the European Union, the United States of America and/or other applicable countries; and you agree to upload only non-controlled content (e.g. e.g. classification = "N" in the EU and "N" for ECCN or "EAR99" in the U.S.); except where you are authorized to do so under applicable (re-)export control laws or appropriate governmental licenses or permits.

No misuse

You agree to refrain from the following actions:

• Use the Cloud Services in a manner designed to avoid or circumvent any usage prohibitions and restrictions (e.g., access and storage restrictions) or monitoring measures applicable to the Cloud Services or avoid charges;
• access or use the Cloud Services to conduct a performance test, create competing products or services, or copy their features or user interface;
• Impairment of the proper functioning or security of our systems;
• distribute, publish, send or facilitate delivery by others of unsolicited bulk email or other messages, promotions, advertisements or solicitations, including commercial advertisements and announcements for informational purposes. You may not alter or obscure email headers or assume the identity of the sender without the express permission of the sender.

5. no security breaches

You represent and warrant that you will not use the Cloud Services in any manner that compromises or may compromise the security of the Cloud Services or the underlying technology. In particular, you warrant the following:

• You will take reasonable precautions to guard against security attacks, viruses and malware on your system and on-site hardware, software or services that you use to connect to and/or access cloud services;
• You will not conduct any penetration testing related to the Cloud Services or the underlying technology without first obtaining our express written consent;
• You do not use devices to access or use the cloud services that do not meet industry standard security guidelines (e.g., password protection, virus protection, current update and patch levels).

6. monitoring and reporting by Foodforecast

You acknowledge that we and our subcontractors may monitor your compliance with this Attachment through the Cloud Services. We reserve the right to investigate any violations of this Attachment. If you become aware of any violation of this Attachment, you agree to notify us immediately and, upon request, assist us in stopping, containing or remedying the violation. We may remove, modify or block access to any content or resources that violate this Attachment or any other agreement entered into with you for use of the Cloud Services. We may report any activity that we believe violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. If a third party alleges that your use of the Cloud Services or your Content violates that third party's rights or any laws or regulations, we may disclose relevant Customer Data.