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General Terms and Conditions for the Supply of Goods and Services to Tillotts Pharma AG

1. Sole Application

1.1 These General Terms and Conditions for the Supply of Goods and Services to Tillotts Pharma AG (“GTC”) apply to any supplies of goods (including, without limitation, under article 184 et seqq. of the Swiss Code of Obligations (“CO”) and article 363 et seqq. CO) and services (including, without limitation, under article 363 CO et seqq. and article 394 et seqq. CO) to Tillotts Pharma AG (“Tillotts”) by third parties.

1.2 These GTC form an integral part of any agreements between the Supplier and Tillotts (together “Parties”).

1.3 Any alternative or supplementary terms and conditions apply only if expressly agreed in The application of any general terms and conditions of the Supplier is excluded, even if the Supplier refers to such general terms and conditions in any correspondence.

2. Offers

2.1 The Supplier shall submit offers to Tillotts free of charge. A remuneration for offers is due only if the Supplier has informed Tillotts in advance in writing about such remuneration (including the amount thereof) and Tillotts approved such remuneration in writing. Nonetheless, even if a remuneration has been validly agreed between the Parties, the offer will be free of charge if Tillotts accept it.

2.2 Offers remain binding for a period of 90 days, unless it is apparent for the Supplier from the circumstances that Tillotts requires an offer with a longer validity.

3. Acceptance of an Offer

3.1 The acceptance of any offer by Tillotts is binding only if in writing. With the submission of an acceptance of an offer by Tillotts, an agreement is concluded.

3.2 If Tillotts accepts an offer other than on the terms specified therein, an agreement is concluded once the Supplier has agreed to the different terms by confirming the order. If the Supplier supplies the goods or services without such prior confirmation, the terms specified by Tillotts are deemed accepted by the Supplier.

3.3 If an order confirmation following the acceptance of an offer by Tillotts differs in any material respect from the offer accepted by Tillotts, including, without limitation, in terms of pricing, dates or performance, such order confirmation shall not be binding upon Tillotts to the extent such variations are not favorable to Tillotts, unless Tillotts has agreed to the variations in writing.

3.4 Without prejudice to clause 11, Tillotts has the right to request changes to the goods or services to be supplied, including the quantities thereof, at any time. The Supplier shall advise Tillotts if any such changes have cost, timing or other material implications. Insofar as there are such implications, no instructions may be carried out without the prior written consent of Tillotts.

4. Prices

4.1 The prices indicated in an offer are fixed.

4.2 Prices quoted by the Supplier include any additional charges, fees, customs, taxes (including, without limitation, VAT) etc.

4.3 If the Supplier reduces its prices for goods and services which were ordered, but not yet supplied to Tillotts, the price payable by Tillotts shall automatically be reduced accordingly.

5. Billing and Payment

5.1 Invoices shall be submitted by the Supplier to Tillotts by invoice@tillotts.com and addressed as follows: Tillotts Pharma AG, Baslerstrasse 15, 4310 Rheinfelden, Switzerland.

5.2 Invoices received by Tillotts shall be paid 60 days after the invoice was received. In any event the invoices will not be paid earlier than the acceptance of the goods or services supplied.

5.3 Payment of any invoice does constitute acknowledgement of any terms and conditions, prices and/or compliance of the goods and services with all contractual requirements.

6. Documentation

6.1 Prior to supplying the final goods or services, the Supplier shall, upon request, present any relevant documents (plans, drafts, concepts etc.) to Tillotts for approval. Such approval by Tillotts shall not relieve the Supplier from its responsibility to ensure fitness for the intended purpose.

6.2 When supplying the goods or services, the Supplier shall provide Tillotts free of charge with any documents (plans, instructions, manuals etc.) which may be reasonably required by Tillotts.

7. Testing

7.1 If testing is specified in respect of goods or services to be supplied, the Supplier shall pay all technical costs and any costs associated with its own personnel. Tillotts pays the costs associated with its own infrastructure and personnel.

7.2 The Supplier shall notify Tillotts not less than one week in advance of the date on which the goods or services will be ready for testing and shall agree with Tillotts on a date for the tests.

7.3 If goods or services are not presented for testing on this date, any technical and personnel costs incurred by Tillotts in connection with the tests shall be refunded by the Supplier to Tillotts. If any defects are found in the goods or services which make it necessary to repeat the tests or conduct further tests, the Supplier shall bear any additional technical and personnel costs incurred by Tillotts.

8. Timing of the supply and consequences of delay

8.1 Goods and services shall be supplied on the agreed delivery date, which is deemed to be a default date (“Verfalltag“).

8.2 The Supplier shall inform Tillotts immediately if it has reason to believe that it will be unable to deliver any or all of the goods or services on the agreed date, indicating the reasons for and likely duration of the delay. In such a case, the Supplier shall at its own cost accelerate the supply of the good and services to the extent possible, including, without limitation, by choosing faster means of transports.

8.3 If an agreement provides for liquidated damages in the event of any delay in delivery, the liquidated damages are payable by the Supplier even if the goods or services supplied are accepted unconditionally. The payment of liquidated damages does not release the Supplier from the underlying contractual obligations. However, any liquidated damages paid will be offset against any damages that may be due.

8.4 Deliveries before the agreed delivery date and/or or partial supplies are permissible with the prior written consent of Tillotts only.

8.5 If it is impossible to supply the goods or services for reasons beyond the Supplier’s control, the supply shall be temporarily suspended until the supply is possible again. Goods to be supplied shall be safely stored by the Supplier at its own costs and risk. If in the event of default of acceptance by Tillotts, the goods shall be safely stored by the Supplier free of charge for a period of one month and against a reasonable fee thereafter, whereby such storage will be at the risk of Tillotts.

9. Specific provisions for the supply of goods

9.1 Goods shall be supplied DDP, Incoterms® 2020, Baslerstrasse 15, CH-4310 Rheinfelden or Hauptstrasse 27, CH-4417 Ziefen (as indicated by Tillotts).

9.2 On the day on which the goods are dispatched, the Supplier shall send a dispatch note to Tillotts. A delivery note and any other reasonably required documents (e.g., shipping papers, pro-forma invoice etc.) shall be provided together with the goods.

9.3 Tillotts is not obliged to inspect the goods upon delivery, with the exception of the quantity of the goods supplied. Defects, whether apparent or hidden, can be notified to the Supplier at any time during the warranty period. Negative differences in quantities shall be notified within two weeks as from the delivery.

10. Warranties and liabilities

10.1 The Supplier warrants, without limitation, that any goods (including, without limitation, their packaging and any documentation) and/or services supplied

a) are free from any defects;

b) are fit for their intended purpose;

c) have all the attributes and meet all performance requirements and specifications indicated;

d) do not vary in any other respect from the provisions of the agreement;

e) comply with all applicable laws and best industry practices; and

f) if goods with an expiry date are supplied, no more than 20% of the entire period of time between the manufacturing date and the expiry date has lapsed upon delivery of the goods.

In case of services supplied under article 394 et seqq. CO, these warranties shall apply by analogy to the extent possible. The Supplier warrants, without limitation, that such services are performed with all due skill, care and diligence and in accordance with best industry practices.

10.2 If, at any time during the warranty period, it becomes evident that the goods or services supplied, or any component thereof, are not as warranted in clause 1, the Supplier shall at its own cost rectify the defects onsite, or if it is impossible to do this within a reasonable period of time, supply replacement goods or services in accordance with clause 9.1, provided that Tillotts can be reasonably expected to accept such rectification or replacement goods or services. Until a successful rectification and replacement supply has taken place, any liquidated damages agreed between the Parties for a delay in delivery shall be due.

10.3 If the Supplier fails to proceed as aforesaid, even though a reasonable period of time has been granted, or Tillotts cannot be reasonably expected to accept a rectification or the supply of replacement good or services, Tillotts is at its discretion entitled to

a) rescind the agreement partly or in full;

b) rectify the defects itself or have them rectified by a third party at the Supplier’s expense; or

c) procure replacement goods and services at the Supplier’s expense.

The right of Tillotts to claim additional damages remains reserved.

10.4 Upon request of the Supplier, Tillotts shall return defective goods to the Supplier at the Supplier’s cost.

10.5 In case of goods or services supplied under article 184 et seqq. of the Swiss Code of Obligations (“CO”) and article 363 et seqq. CO, the warranty period is two years as from the date on which the goods or services are delivered to Tillotts. In case of other services including, without limitation, under article 394 et seqq. CO, the ordinary statutory limitations periods apply. Where a formal acceptance process takes place, the warranty period commence once the acceptance process has been successfully completed.

10.6 The warranties applying to goods and services supplied shall apply equally to any replacement goods or services and in respect of any work performed to rectify defects.

10.7 The Supplier shall indemnify and hold Tillotts harmless in full (including costs of legal representation) from and against any claims and damages that may result from any breach of the warranties pursuant to clause 1.

11. Termination of an agreement by Tillotts at will

11.1 Tillotts is entitled to terminate at will any agreement, whether for goods or services, and waive future performance at any time with immediate

11.2 In case of no fault of the Supplier, Tillotts shall:

a) in case of the supply of goods: compensate the Supplier for the proven negative interests (“negatives Vertragsinteresse“), namely the costs incurred by the Supplier in view of the supply of the goods to Tillotts, provided that the Supplier shall be obliged to minimize such negative interests to the extent possible, including, without limitation, by making commercially reasonable efforts to find another purchaser for the relevant goods;

b) in case of the supply of services: compensate the Supplier on a pro rata basis for the services already rendered until receipt of the termination with immediate effect and compensate the Supplier for the proven negative interests (“negatives Vertragsinteresse“), namely the allocation of resources for the future provision of the services to Tillotts, provided that the Supplier shall be obliged to minimize such negative interests to the extent possible, including, without limitation, by (re-)allocating such resources to other customers.

12. Confidentiality

12.1 Any information which may be provided to the Supplier by Tillotts for the purposes of preparing an offer or executing an order, shall be treated as strictly confidential, adequately protected against any unauthorized access and shall not be used for any purpose other than the supply of the goods and services. All related IP Rights shall exclusively belong to Tillotts.

12.2 Upon request of Tillotts, the Supplier shall immediately return all materials and documents, including any copies, to Tillotts or destroy them irrevocably.

12.3 No reference may be made to the business relationship with Tillotts in any information or publicity material without its prior written consent.

13. Intellectual Property

13.1 The Supplier warrants that no third-party intellectual property rights and/or proprietary know-how (“IP Rights”) are or will be infringed as a result of supplying and using the goods or services.

13.2 The Supplier shall indemnify and hold Tillotts harmless in full (including costs of legal representation) from and against any claims and damages that may result from any infringement of third-party IP Rights.

13.3 If goods or services can no longer be fully used as a result of any infringement of third-party IP Rights, Tillotts is at its discretion entitled to

a) rescind the agreement partly or in full;

b) request the Supplier to alter the goods or services at the Supplier’s cost to the extent required, so that they do no longer infringe third-party IP Rights; or

c) request the Supplier to undertake commercially reasonable efforts to acquire a right to use such IP Rights at the Supplier’s cost;

whereby with regard to b.) and c.) above, Tillotts remains free to rescind the agreement if the goods or services are not altered respectively third-party IP Rights are not acquired within a reasonable period of time.

13.4 If any goods or services to be supplied by the Supplier lead to the creation of any IP Rights, any such IP Rights exclusively belong to, and are hereby automatically transferred to Tillotts. The Supplier and its employees (including any subcontractors) shall assist Tillotts in taking any action that may be required to protect its IP Rights and shall sign any documents and make any declarations that may be necessary for such purpose.

13.5 If any work results respectively IP Rights of Tillotts depend on the pre-existing IP Rights of the Supplier, the Supplier grants a non-exclusive, royalty-free and perpetual license to use such IP Rights of the Supplier to the extent required for Tillotts to exploit its work results and IP Rights.

14. Subcontracting

14.1 The Supplier shall not appoint any subcontractors without the prior written consent of Tillotts.

14.2 If Tillotts approves such subcontractors, the Supplier remains fully liable for any acts and omission of such subcontractors, as if such acts and omissions were its own.

15. Insurance, work permits

15.1 The Supplier shall take out and maintain adequate insurance with a reputable insurance company to cover any loss or damage that may be caused by it (including any subcontractors) or its employees or its consultants.

15.2 The Supplier shall insure any machinery and equipment etc. supplied on loan to Tillotts against the usual risks. Any liability on the part of Tillotts in respect of the destruction of or damage caused to such machinery, equipment etc., is hereby excluded, unless such destruction or damage was caused deliberately or through gross negligence.

15.3 The Supplier shall ensure that any employees, including employees of subcontractors, who are assigned to work on the premises of Tillotts hold a valid Swiss work permit respectively a timely notification is filed with the competent authorities and are engaged in accordance with all applicable laws.

16. Data Privacy

16.1 The Parties are aware of the fact that concluding and performing their agreements may result in the processing of personal data in general and the contact details of the other party and its contact persons in particular. The personal data exchanged in the context of the agreements between the Parties shall only be processed by the Parties and their affiliated companies to the extent required for managing the business relationship and executing the agreements between the Parties.

16.2 The Parties warrant that any exchange of personal data with the other party takes place in accordance with the applicable data privacy legislation, including the Swiss Data Protection Act and the EU’s General Data Protection Regulation, to the extent applicable, and that they do not exchange any personal data in violation of such legislation.

16.3 Upon completion of the Services, Supplier shall be obliged to destroy all personal data processed in the course of the Services in Supplier’s possession or control (including personal data processed by Supplier’s subprocessors). This obligation shall not apply to the extent that Supplier is required by any European (or European member state) law to retain all or some of the personal data, in which case Supplier shall isolate and protect the personal data from any further processing except to the extent required by such law.

16.4 Immediately after the destruction of the personal data, Supplier must certify in writing to Tillotts that the destruction of the personal data has been completed, specifying the method used for the true permanent destruction of the personal data.

16.5 For the processing of personal data by Tillotts it is referred to https://www.tillotts.com/privacy-policy/.

17. Business Ethics

17.1 The Supplier shall comply at any time comply by analogy with the Code of Business Ethics (“Ethics Code”) of Tillotts, available at https://www.tillotts.com/ethics-code/.

17.2 The Supplier shall comply at any time with all applicable laws including, without limitation, unfair competition, antitrust, anti-bribery and EHS and non-discrimination laws.

18.      Assignment, applicable law and place of jurisdiction

18.1 The Supplier shall not assign any claims against Tillotts to a third party without the prior written consent of Tillotts. Any such assignment is null and void.

18.2 Any agreements between the Parties shall be governed by material Swiss law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

18.3 Rheinfelden shall be the exclusive place of jurisdiction.

 

Version: 01/2021