GENERAL TERMS & CONDITIONS OF SALE AND DELIVERY

OF

FROMATECH INGREDIENTS B.V.

Article 1. Definitions and scope

1. These general terms and conditions of sale and delivery (the ‘General Conditions’) govern all offers from, all acceptances by, and all contracts with Fromatech Ingredients B.V., a private limited company with registered office and principal business address at Industriestraat 15, 6135 KE Sittard, Netherlands Chamber of Commerce registration number 14019715, (‘the seller’) in which Fromatech Ingredients B.V. acts as the seller.

2. These General Conditions may be read on, and downloaded from, the website http://www.fromatech.com/legal. The Dutch text of these General Conditions takes precedence over any translation hereof in the event of any discrepancy.

3. In these General Conditions the term ‘contracting party’ means the party with which the seller contracts subject to these General Conditions.

4. Once these General Conditions are stipulated to apply to a contract, they will also apply without further stipulation to all future contracts between the seller and the contracting party.

5. Any change to these General Conditions is only binding if it has been agreed in writing between the parties. If there is any exception to any of the provisions of these General Conditions the other conditions will remain fully enforceable. An agreement to depart from these General Conditions on one occasion does not give the contracting party any rights in respect of future occasions.

6. Any complaint concerning notification of these General Conditions must be sent in writing to the seller within two weeks of the creation of a contract, failing which all rights are lost.

7. Any complaint alleging that any provision of these General Conditions is unreasonably onerous must be sent in writing to the seller within two weeks of the seller seeking to enforce such a provision, failing which all rights are lost.

8. If any provision of these General Conditions is voidable, void, or otherwise declared to be unenforceable, the other provisions of these General Conditions will remain fully enforceable and the parties shall replace the voidable, void, or otherwise unenforceable provision with a valid provision that is as close as possible in scope and intent to the provision that is voidable, void, or otherwise unenforceable.

9. The seller is entitled to amend these General Conditions. The contracting party is deemed to have accepted the amended General Conditions if it has not sent written notice of objection to the amended General Conditions to the seller within fourteen days of having received or having been notified of the amended General Conditions.

10. The seller expressly rejects any general or other terms and conditions of the contracting party.

 

Article 2. Creation and termination of contract

1. All offers made by the seller are subject to contract and remain open for the stipulated period.

The presentation of images, descriptions, measurements, quantities, colour indications, and website and advertising materials does not bind the seller.

2. The seller reserves the right to withdraw, cancel, or make changes to offers at any time simply by informing the contracting party, even if the offer specifies a longer period for acceptance. An offer will in any event expire without further notice thirty days after the date the offer was issued, unless the seller has extended this offer in writing.

3. The information supplied with the offer, including prices, may not be disclosed to any third party, without the prior written consent of the seller.

4. The contracting party guarantees that the information it supplies to the seller based on which the seller makes its offer is complete and accurate. The contracting party must stipulate any special requirements for the goods in writing to the seller before entering into a contract.

5. Any complaint concerning a confirmation of order must be notified in writing to the seller within 24 hours after the date of written confirmation, failing which all rights are lost.

6. The information pertaining to offers, acceptances, and contracts as recorded in the systems of the seller constitute conclusive evidence thereof. It is not possible to rely on rebuttal evidence. This provision constitutes an agreement on evidence as defined by Article 153 of the Dutch Code of Civil Procedure.

7. The only terms that bind the parties are those agreed between them in writing and these General Conditions.

8. A fixed-term contract between the parties may not be terminated by the contracting party.

9. A fixed-term contract between the parties will be automatically extended by the same fixed term unless the contracting party gives three months’ written notice to terminate before the end of the current contract term.

10. A contract between the parties for an indefinite term may be terminated in writing by the contracting party subject to three months’ written notice, with effect from the end of any month.

11. If the contracting party terminates a contract pursuant to section 9 or 10 of this article, it must purchase and pay for the stock developed/produced under its private label, or for products otherwise developed/produced by the seller for this contracting party, such as flavours or flavour profiles, or it must comply with the related contractual obligation to purchase.

If it fails to make such purchases the contracting party must nevertheless pay the purchase price and the seller is entitled to deal with these products as it thinks best. If the contracting party fails to purchase and pay for the products specially developed or produced for the contracting party, the seller is also entitled to market these products itself under the relevant label of the contracting party.

Article 3. Prices and payment

1. Unless otherwise stipulated in writing, the prices quoted by the seller are in euros, in line with the prevailing prices at the time of the offer, and net of VAT and other taxes and duties, such as import and export duty.

2. Unless otherwise stipulated in writing, the prices are quoted ex-works or from the commercial premises of the seller.

3. If at the time of performance of the contract or part thereof the prices charged to the seller by its suppliers increase due to increase in their prices or other cost factors, the seller is entitled to increase the contract price, and the contracting party is obliged to pay this price increase without any right to terminate the contract by any legal means.

4. If the contracting party consists of more than one natural person or legal entity, then each individual natural person or legal entity is jointly and severally liable to comply with their contractual obligations to the seller.

5. Payment must be made without any set-off or suspension for any reason whatsoever, unless there is any non-appealable decision by a court that the contracting party has an off-settable counterclaim or ground for suspension.

6. Unless stipulated otherwise in writing, invoices sent by the seller must be paid within fourteen days of the invoice date in the manner specified by the seller. Each payment term is a deadline as defined by law.

7. If the contracting party fails to pay the seller the sum owed within the payment term, it is automatically in breach of contract and liable to pay interest on the gross amount invoiced (the amount including VAT, without discount) at the contractual rate of 1.5% from the date that payment falls due to the date of payment in full.

8. All costs incurred in the extrajudicial enforcement of payment are payable by the contracting party, with a minimum of 15% of the gross amount invoiced (the amount including VAT, without discount) or €500.00 excluding VAT, whichever is more.

9. Any complaint concerning an invoice must be sent to the seller in writing within two weeks following the invoice date, failing which all rights are lost.

10. Irrespective of any pre-existing agreed terms for payment, a claim by the seller becomes immediately due and payable – and the seller is entitled to terminate the contract simply by written notice – if the contracting party is subject to an attachment order upon its goods, or if a moratorium, insolvency order or debt rescheduling scheme is applied for or granted, or if steps in this regard are deemed at any moment to be unavoidable.

11. The seller is entitled to require the contracting party to provide security at any time for the performance of its contractual obligations. If such security is not provided, the seller is entitled to suspend performance of its own obligations or terminate the contract, without thereby incurring any liability to compensate the contracting party.

Article 4. Retention of title to goods and labels

1. The seller retains title to all goods it delivers at any time until the contracting party has complied in full with its obligations to the seller.

2. If the contracting party is in breach of its obligations, the seller is entitled to recover from the contracting party the goods to which it has title from wherever they are located, at the cost of the contracting party.

3. If the seller exercises its retention of title the contracting party must cooperate in the return of the goods, including providing access to the relevant locations and buildings.

4. The contracting party has no right of retention in respect of goods delivered by the seller.

5. If an attachment order is secured upon goods to which the seller has reserved title, the contracting party must notify the seller of this fact in writing without delay, and in any event within 48 hours of the attachment order being made.

6. Until ownership passes to the contracting party, the contracting party is not entitled to sell, dispose of, encumber, pledge, or otherwise supply to any third party by any other method the relevant goods, except in the normal exercise of its business. Any breach of this prohibition will incur the contracting party in an immediately payable penalty to the seller equal to the gross amount invoiced for such goods (the amount including VAT, without discount), without prejudice to the right of the seller to claim additional compensation.

7. Until ownership passes to the contracting party, the contracting party must store the goods belonging to the seller of which it is in possession in a way that demonstrably complies with the requirements of the seller, treat them with the appropriate duty of care, insure them under the normal terms, and identify them as belonging to the seller. On request, the contracting party must provide the seller with sight of the insurance policy.

8. The contracting party must notify the seller of all specifications required for the labels to be attached to the goods to be supplied, and must approve such labels in advance. For such purposes, the seller should send the contracting party a draft label, which the contracting party should approve within three working days. Following approval, or the expiry of the term of three working days, the contracting party itself guarantees at all times the accuracy of the label and the contracting party is solely liable for any loss resulting from the use of the label. Following approval, or the expiry of the term of three working days, any incorrectly labelled products must be purchased by the contracting party at the contract price. If after approval of the label or the expiry of the term of three working days, it is necessary for the seller to make changes to the label, the relevant costs are the liability of the contracting party.

Article 5. Delivery of goods and transfer of risks

1. Delivery periods are approximate only and are not deadlines.

2. The seller is always entitled to make, and invoice for, part deliveries.

3. Unless agreed otherwise in writing, delivery of the goods is ex-works or business premises, where the risk of damage or loss passes immediately to the contracting party, and the contracting party is liable for transport costs.

4. If there is agreement for Delivery Duty Paid (DDP), the seller will be responsible for transport to the delivery address agreed with the contracting party. The seller is free in its choice of means of transport, transporter, and packaging. The risk of damage, loss transfers to the contracting party at the moment the goods are loaded for transport ex warehouse, so that the transport of the goods is at the risk of the contracting party is.

5. The seller is not liable for failure to deliver within the stated delivery periods, and any such failure does not entitle the contracting party to terminate the contract or otherwise suspend its own contractual obligations.

6. The contracting party must take possession of the goods to be delivered before the end of the delivery period, failing which the seller is entitled to choose either to seek performance of the contract, or demand payment, or terminate the contract, without the need to first serve notice of breach, and without prejudice to its right to claim compensation for the full amount of its loss.

Article 6. Complaints and remedies

1. Immediately following delivery, the contracting party must check that the goods satisfy the agreed terms with regard to quantity, quality and product specifications.

2. Any complaint regarding any immediately identifiable defect and/or noticeable external defect to the goods supplied, in terms of both quality or quantity, must be immediately recorded in writing on the consignment or delivery note, failing which all rights are lost.

3. All other complaints relating to non-outwardly visible defects to the supplied goods must be made to the seller in writing within five working days after the contracting party has discovered, or ought to have discovered, the alleged defect, failing which all rights are lost.

4. A notice of defects must contain as detailed a description as possible of the defects, so that the seller is able to adequately respond. Having identified any possible defect, the contracting party must take all steps to prevent or limit loss, including immediately ceasing to use the goods.

5. In the event of a complaint, the contracting party must return to the seller on demand the relevant goods at the expense and risk of the contracting party, failing which all rights are lost. The contracting party will also assist the seller in any other way to check/verify the basis for the complaint.

6. If a complaint relates to a part of a delivery, this does not entitle the contracting party to reject the entire delivery.

7. A complaint does not entitle the contracting party to suspend or set off its obligations.

8. The right to complain will lapse:

- after the end of the ‘best before’ date for the delivered goods;

- if the goods have already been used and/or are no longer in their original condition/packaging;

- if the goods have not been stored or handled correctly.

9. A complaint that is made in time and upheld entitles the contracting party only to replacement of the goods free of charge. If replacement of the goods is not possible, the price of the relevant goods will be credited. The seller is not required to take any other steps or compensate for any loss.

10. If the claim is not upheld the costs arising therefrom, such as the costs incurred by the seller in investigating the complaint, will be charged in full by the seller to the contracting party, and be payable by the contracting party.

11. Returned goods will not be accepted, unless agreed otherwise in writing between the parties.

Article 7. Liability and force majeure

1. Apart from as provided for in Article 6, the contracting party has no claim whatsoever against the seller in respect of any defect to goods, services, or work supplied or carried out by the seller.

2. Except in the case of any mandatory law, the seller is not obliged to pay compensation for any direct or indirect loss of any kind, including commercial loss, loss of profits, lost savings, whether to fixed or moveable property, or to persons, or arising from penalties and/or consequential loss suffered by the contracting party, its personnel, occupants, users, or other third parties, except in the case of any deliberate act or gross negligence on the part of the seller. Furthermore, the seller is not liable in the above manner for any acts of its employees or other persons within its sphere of risk.

3. The seller is not liable for loss resulting from:

- recommendations or advice given by the seller to the contracting party;

- termination of the contract by the seller;

- failure by the seller to deliver the right number of correct goods on time;

- the delivery of defective goods by the seller;

- the incorrect or careless storage or handling by the contracting party of goods delivered by the seller;

- changes made to the goods by the contracting party;

- an infringement of a patent, licence, or other user right by the contracting party or as a result of information supplied by the contracting party;

- damage or loss, howsoever caused, to raw materials, semi-finished products, models, or other goods supplied by the contracting party.

4. If and insofar as the seller does have any liability of any kind, such liability is always limited to the net amount invoiced, excluding VAT, for the performance that gave rise to the loss, with the proviso that the seller cannot be liable for an amount greater than the maximum sum for which it is insured.

5. Claims in law based on loss notified to the seller in time will lapse one year after discovery of the loss unless the contracting party issues court proceedings on the merits of the case against the seller within that year.

6. The contracting party shall indemnify the seller for any loss suffered by the seller as a result of any third-party claim connected with the goods or services supplied by, or work carried out by, the seller.

7. If due to force majeure the seller is temporarily unable to perform the contract, it is entitled to suspend its performance of all or part of the contract, without being required to pay compensation, for as long as the force majeure continues. The term ‘force majeure’ includes breaches of contract by the suppliers of the seller or by other agents, stoppages in production, defective electricity supply, defects to internet or data network supply, higher than normal incidence of sick leave amongst employees or agents, government measures, or weather conditions.

8. If due to force majeure the seller is unable to perform the contract, the contracting party cannot require the seller to comply with the contract, and cannot terminate the contract or claim compensation.

9. If the force majeure is, in the judgment of the seller, of a permanent nature, then the seller is entitled to amend or terminate all or part of the contract without thereby incurring liability to compensate the contracting party.

Article 8. Packaging and deposits

1. Unless otherwise agreed in writing, re-usable packaging is loaned and thus remains the property of the seller, irrespective of the payment of a deposit.

2. The contracting party is not entitled to use re-usable packaging for purposes other than those for which it is intended. The contracting party must impose this obligation in turn upon its customers.

3. The contracting party must also impose an obligation upon its customers to retain at all times on behalf of the contracting party the re-usable packaging.

4. After use, and whenever the seller requires, the packaging must be sorted out, put on pallets and returned to the seller as soon as possible.

5. A deposit is payable for re-usable packaging. This deposit is not to be regarded as payment of the value of this packaging.

6. If packaging is returned to the seller in a damaged state, the deposit will not be returned and the contracting party will be required to pay compensation.

Article 9. Intellectual and industrial property rights

1. the seller reserves all intellectual and industrial property rights to the goods it produces, develops and supplies. All intellectual property rights to matters such as the recipes, ideas, and designs of the seller, always vest in the seller, even if they have been developed in consultation with, or on the proposal of, the contracting party. The same applies to any additions or changes made by the contracting party to matters such as the recipes, ideas, and designs of the seller. The contracting party expressly indemnifies the seller against any third-party claim based on any intellectual or industrial property rights or any alleged infringement thereof.

2. The contracting party may only market the goods supplied by the seller in their original packaging. The contracting party is expressly prohibited from making any changes to the goods supplied by the seller by, for example, packaging or labelling them differently, or by giving them a different name, trade name, or specification.

3. The contracting party is not entitled to offer, show to, or otherwise inform any third party of information, product specifications, images, catalogues, or other data provided by the seller to the seller, or to copy such information, product specifications, images, catalogues, or other data provided by the seller, or to use such information, product specifications, images, catalogues, or other data provided by the seller otherwise than for a purpose for which it was supplied, without the prior written consent of the seller.

4. The contracting party may only advertise the brands of the seller in such manner as has been approved by the seller.

5. The contracting party must not make any adverse comment about the seller, its brands, and its business.

6. In the event of a breach of any provision of this article, the contracting party is immediately liable to pay the seller a penalty of €10,000 per breach, plus €500 for each day that the breach continues, without prejudice to all other rights available to the seller.

7. The seller reserves the right at any time to make changes to its goods and/or services in order to avoid any possible conflict with any third-party rights.

Article 10. Jurisdiction and competent court

1. Any dispute arising between the parties pertaining to any contract with the seller, and any contract derived thereunder, is governed exclusively by Dutch law. The provisions of the Vienna Sales Convention are excluded.

2. Any dispute arising between the parties pertaining to any contract between them, and any contract or other actions pertaining to such contract, including, but not limited to, unlawful act, undue payment, and undue enrichment shall be brought in the first instance before the competent court of the Court of Limburg, for the district of Maastricht, except insofar as any mandatory rules of competency may prevent such a choice