General Terms & Conditions of Sale

|  1  |  GENERAL

1.1 These General Terms and Conditions of Sale (“hereinafter the “GTCs”) govern sales of goods and/or services (hereinafter the “Products”) by Aqurate Ingredients Intl (M) Sdn Bhd, a company incorporated under the laws of Malaysia, registered under number 201201009861 (983381-W) (hereinafter “AQURATE”), to purchaser (hereinafter the “Customer”), which agrees to be bound by the GTCs. Each individual purchase contract entered between AQURATE and the Customer shall refer to as the “Sale Contract”.

1.2 By contracting on the basis of the GTCs, Customer agrees to its applicability in respect of all dealings, even if this is not explicitly stated.

1.3 AQURATE explicitly rejects the applicability of any general terms and conditions of Customer. Furthermore, the GTCs supersede any and all terms of prior oral and/or written quotations, communications, agreements and understandings of the parties in respect of the sale and delivery of the Products and shall apply in preference to and supersede any and all terms and conditions of any order placed by Customer and any other terms and conditions submitted by Customer. Failure by AQURATE to object to the terms and conditions set by Customer shall in no event be construed as an acceptance of any of the terms and conditions of Customer. Neither AQURATE’s commencement of performance nor AQURATE’s delivery shall be deemed as acceptance of any of Customer’s terms and conditions. If the GTCs differ from any of the terms and conditions of Customer, the GTCs and any subsequent communication or conduct by or on behalf of AQURATE, including, without limitation, confirmation of any order and delivery of Products, constitute a counter-offer and not acceptance of such terms and conditions submitted by Customer. Any communication or conduct of Customer which confirms an agreement for the delivery of Products by AQURATE, as well as acceptance by Customer of any delivery of Products from AQURATE shall constitute an unqualified acceptance by Customer of the GTCs.

1.4 AQURATE reserves the right to amend the GTCs at any time. AQURATE will notify Customer of any such amendments by sending the amended GTCs to Customer, posting them on the aforementioned internet site or otherwise. The amended GTCs will take effect on the date of notification of these amendments. The amended GTCs shall apply to all transactions concluded between Customer and AQURATE as of the day following the date of such notification.

1.5 No special terms and conditions may prevail over these GTCs unless formally accepted beforehand in writing by an authorized representative of AQURATE in the Confirmation.

|  2  |  QUOTATIONS, ORDERS AND CONFIRMATION

2.1 Unless stated otherwise by AQURATE, quotations made by AQURATE in whatever form are not binding on AQURATE and merely constitute an invitation to Customer to place an order. All quotations issued by AQURATE are revocable and subject to change without notice. Orders are not binding until accepted by AQURATE in writing (“Confirmed Order”). AQURATE shall be entitled to refuse an order without indicating the reasons.

2.2 Any order made by a Customers must be in writing. An order will only be accepted by AQURATE with a written confirmation. Customer may cancel the Order within 24 hours of the receipt of the Confirmation. The Confirmation shall constitute the Sale Contract between the AQURATE and Customers.

2.3 Each delivery shall stand as a separate transaction and any failure to deliver shall have no consequences for other deliveries.

|  3  |  PRICES

3.1 Prices and currencies of AQURATE’s Products are as set out in the Quotations. Unless otherwise agreed, AQURATE’s prices include standard packaging but do not include Value Added Tax, Goods and Services Tax, or any other similar applicable taxes, duties, levies or charges in any jurisdiction levied in relation to the Products or the delivery thereof (“Taxes”). The amount of any Taxes levied in connection with the sale of Products to Customer shall be for Customer’s account and shall either be added to each invoice or separately invoiced by AQURATE to Customer.

3.2 Unless the prices have been indicated as firm by AQURATE in the Confirmed Order, AQURATE is entitled to increase the price of the Products prior to delivery, in the event of any factor beyond AQURATE control include, but not limited to, sharp rise in the price of the Products, change in applicable laws, increases in supply costs, increases in taxes, duties, freight costs and insurance premiums, foreign exchange fluctuations, any change to the order requested by the Customer and/or a genuine mistake by AQURATE.  A written notice from AQURATE notifying Customer of any increase and the effective date of the increase shall be accepted by Customer as conclusive and binding.

4  |  PAYMENT AND CUSTOMER’S CREDIT

4.1 Unless otherwise expressly agreed, the price of all Products sold is due in full on the date indicated on the invoice. All payments shall be made without any deduction on account of any Taxes and free of set-off or other counterclaims except for set-offs with uncontested and/or enforceable counterclaims. All bank charges for remittances are to be borne by Customer.

4.2 With regard to payment for the Products, time is of the essence. AQURATE may, without prejudice to any other rights of AQURATE, charge finance interest on any overdue payment at 1.5% per month from the due date until all outstanding amounts are paid in full. All costs and expenses incurred by AQURATE with respect to the collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other expenses of litigation) shall be for Customer’s account.

4.3 Any complaint with respect to the invoice must be notified to AQURATE in writing within 30 (thirty) days after the date of invoice. Thereafter, Customer shall be deemed to have approved the invoice.

5  |  DELIVERY AND ACCEPTANCE

5.1 Products are sold according to INCOTERMS; for any issue involving risk transfer requirements, reference shall be made to the corresponding INCOTERMS.

5.2 Confirmed delivery periods and delivery dates shall apply only from the date all details of the Products have been clarified, including clarification of all technical details and other documents required by AQURATE to execute the Products and are predicated on Customer’s compliance with the payment terms as stipulated under the Terms of Payment in the quotations. Should delivery of Products be prevented by reasons beyond the control of AQURATE, the delivery periods and delivery dates shall be deemed adhered to it by the dates agreed upon.

5.3 AQURATE is entitled to deliver the Products as stated in the Confirmed Order in parts and to Invoice separately. Delay in delivery of any Products shall not relieve Customer of its obligation to accept delivery thereof unless Customer cannot reasonably be expected to accept such late delivery. Customer shall be obliged to accept the Products and pay the rate specified in the Confirmed Order for the quantity of Products delivered by AQURATE.

5.4 Customer will be notified when the Products are ready for delivery. In case request by Customer to delay delivery of Products, AQURATE, shall be entitled to further claims of compensation for the cost of intermediate handling and storage of the Products. In case such delay of delivery exceeds one calendar month, AQURATE is entitled to charge Customer loss in interest at a rate of 1.5% per month of the non-paid portion of the order price.

6  |  CANCELLATION

6.1 Confirmed Order cannot be cancelled without AQURATE’s express written consent. Customer’s wrongful non-acceptance or rejection of Products or cancellation of the Confirmed Order shall be subjected to a cancellation charges of 15% of the total cancellation value to entitle AQURATE to recover from Customer any damages caused by such action.

11  |  FORCE MAJEURE

11.1 Neither party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other party caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws and regulations, administrative measures, orders or decrees of any court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, pandemic, strike, lockout, slowdown, labour disturbances, difficulty in obtaining necessary labour or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, delay in delivery or defects in Products supplied by AQURATE or subcontractors (“Force Majeure”).

11.2 Upon the occurrence of any event of Force Majeure, the party suffering thereby shall promptly inform the other party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations under the Confirmed Order. In the event of any delay, the obligation to deliver shall be suspended for a period equal to the time loss by reason of Force Majeure. However, should a Force Majeure event continue or be expected to continue for a period extending to more than 60 (sixty) days after the agreed delivery date, either Party is entitled to cancel the affected part of the Confirmed Order without any liability to the other Party.

10  |  LIMITED LIABILITY

10.1 The liability of AQURATE is strictly limited to the obligations expressly set out in these GTCs. All penalties and indemnities contractually provided for are fixed and final.

10.2 AQURATE total liability to the Customer in respect of all losses arising under or in connection with the supply of Products, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the sales value of the Products in question. AQURATE will only be held liable for direct damage of Customer and only in cases where it is guilty of a wrongful act or negligence, proven by the Customer. AQURATE will never be held liable for damages resulting from a wrongful act and/or negligence on the part of the Customer and/or a third party.

10.3 In no event, whatever the basis, AQURATE be liable to Customer or any other person for any kind of special, incidental, indirect, consequential or punitive damage or loss, cost or expense, including without limitation, damage based upon lost goodwill, lost sales or profit, delay in delivery, work stoppage, production failure, impairment of other goods or based on any other cause, and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise.

12  |  MODIFICATIONS AND INFORMATION: INDEMNITY

12.1 Unless the Specifications have been agreed to be firm for a certain period of time or quantity of Products, AQURATE reserves the right to change or modify the Specifications and/or manufacture of Products and to substitute materials used in the production and/or manufacture of Products from time to time without notice. Customer acknowledges that data in AQURATE’s catalogues, product data sheets and other descriptive publications distributed or published on its websites may accordingly be varied from time to time without notice.

12.2 Customer must utilize and solely rely on its own expertise, know-how and judgment in relation to the Products and Customer’s Use thereof. Consultation provided by AQURATE shall not give rise to any liability or obligation whatsoever on the part of AQURATE. Customer shall indemnify and hold AQURATE harmless from and against any and all damages, losses, costs, expenses, claims, demands and liabilities (including, without limitation, product liabilities) arising out of or in connection with the Products and Customer’s Use thereof.

13  |  COMPLIANCE WITH LAWS AND STANDARDS

13.1 Customer acknowledges that the Use of the Products may be subject to requirements or limitations under any law, statute ordinance, rule, code or standard, including, but not limited to, all applicable regulations relating to (i) anti-bribery and anticorruption and (ii) international trade, such as, but not limited to, embargos, import and export control and sanctioned party lists (“Laws and Standards”).

13.2 Customer expressly warrants that employees, agents and subcontractors of the Customer shall not directly or indirectly (i) accept, promise, offer or provide any improper advantage to or (ii) enter into an agreement (a) with any entity or person, including officials of a government or a government controlled entity, or (b) relating to a product, which would constitute an offence or infringement of applicable Laws and Standards.

13.3 Customer shall be exclusively responsible for (i) ensuring compliance with all Laws and Standards associated with its intended Use of the Products; and (ii) obtaining all necessary approvals, permits or clearances for such Use.

14  |  INDEPENDENT CONTRACTORS

14.1 AQURATE and Customer are independent contractors, and the relationship created hereby shall not be deemed to be that of principal and agent.

15  |  NON-ASSIGNMENT AND CHANGE OF CONTROL

15.1 Neither party may assign any of the rights or obligations under the Confirmed Order without the prior written consent of the other party, except that either party may assign such rights and obligations to any of its affiliates or to a third party acquiring all or a substantial part of its assets or business relating to the Products.

15.2 AQURATE shall have the right to terminate the Confirmed Order with immediate effect if, at any time during the term of the Confirmed Order, a person or group of persons, who are unrelated to the persons controlling Customer as of the date of the Confirmed Order, acquires control, through ownership of voting securities or otherwise, over Customer. Customer must notify AQURATE of such acquisition within 10 (ten) days thereof. AQURATE may exercise its right to terminate the Confirmed Order by giving Customer written notice of such exercise within 10 (ten) days after the date of receipt of such notice.

16  |  SUSPENSION AND TERMINATION

16.1 If Customer is in default of performance of its obligations towards AQURATE and fails to provide to AQURATE adequate assurance of Customer’s performance before the date of scheduled delivery; or if Customer becomes insolvent or unable to pay its debts as they mature, or goes into liquidation (other than for the purpose of a reconstruction or amalgamation) or any bankruptcy proceeding shall be instituted by or against Customer or if a trustee or receiver or administrator is appointed for all or a substantial part of the assets of Customer or if Customer enters into a deed of arrangement or makes any assignment for the benefit of its creditors; or in case of non-compliance of Customer with Laws and Standards, then AQURATE may, by notice in writing, forthwith without prejudice to any of its other rights: (i) demand return and take repossession of any delivered Products which have not been paid for and all costs relating to the recovery of the Products shall be for the account of Customer; and/or (ii) suspend its performance or terminate the Confirmed Order for pending delivery of Products unless Customer makes such payment for Products on a cash in advance basis or provides adequate assurance of such payment for Products to AQURATE.

16.2 In any such event of Article 16.1, all outstanding claims of AQURATE shall become due and payable immediately with respect to the Products delivered to Customer and not repossessed by AQURATE.

7  |  EXAMINATION AND CONFORMITY TO SPECIFICATIONS

7.1 On delivery and during the handling, use, commingling, alteration, incorporation, processing, transportation, storage, importation and (re)sale of the Products, Customer shall perform the necessary examine of the Products and satisfy itself that the Products delivered compliance with the specifications or features listed on the Certificate Of Analysis accompanying each product at the time of delivery.

7.2 Complaints about visible defects or apparent mismatch between the Products delivered and the Products ordered, must be communicated in writing immediately and/or not later than 7 (seven) days of receipt of defects or mismatch Products.

7.3 In the case of any other defects e.g. hidden defects which non-visible at the time of receipt, complaints must be reported no later than 1 (one) month of the date of discovery and in no event later than 3 (three) months of the date of delivery. Use or processing of the Products shall be deemed to be an unconditional acceptance of the Products and a waiver of all claims in respect of the Products.

7.4 In the absence of notification as a claim within the aforesaid time in accordance with 7.2 and 7.3 above, the Products shall be deemed to have been delivered and accepted in conformity with the agreement. Customer shall extinguish any claim relating to the Products delivered.

7.5 Subject to the Customer sending a claim within the deadlines and under the terms set out above, AQURATE shall only be liable for replacing the Product with the defects, to the exclusion of any

compensation or damages, provided the Customer has:

(i) not caused the defect to appear due to negligent use, handle or storage, and

(ii) refrained from taking action himself charging a third party to take action on the Product as soon as they noticed the defect unless first expressly authorized in writing by AQURATE, and

(iii) allowed AQURATE a free hand to ascertain if need be the alleged defects by itself.

 

Upon AQURATEL’s express instruction, the Product must be returned in perfect condition and in the full

 

original packaging at the Customer's own costs.

 

7.6 Defects in portions of the Products do not entitle Customer to reject the entire delivery of the Products unless Customer cannot reasonably be expected to accept delivery of the remaining non-defective portions of the Products. Complaints, if any, do not affect Customer’s obligation to pay as defined in Article 4.

8  |  TRANSFER OF RISK AND PROPERTY

8.1 The risk of the Products shall pass to Customer according to the applicable Incoterm (Article 5.1).

8.2 The title to the Products shall not pass to Customer and full legal and beneficial ownership of the Products shall remain with AQURATE unless and until AQURATE has received payment in full for the Products, including costs such as interest, charges, expenses, etc.

8.3 In the event of termination on the basis of Article 16, AQURATE shall, without prejudice to any other rights of AQURATE, be entitled to require immediate return of the Products, or to repossess the Products, for which it may invoke a retention of title.

9  |  LIMITED WARRANTY

9.1 AQURATE solely warrants that on the date of delivery the Products shall conform to the Specifications. If and to the extent Products are in breach with such warranty, as determined in accordance with Article 7, AQURATE may at its own option and within a reasonable time replace the Products at no charge to Customer or issue a credit for any such Products in the amount of the original invoice price. Accordingly, AQURATE’s obligation shall be limited solely to replacement of the Products or for credit of the Products.

9.2 AQURATE’s obligation to replace or credit shall be contingent upon receipt by AQURATE of timely notice of any alleged non-conformance of Products and, if applicable, the return of the Products, in accordance with Article 7.

9.3 The foregoing warranty is exclusive and in lieu of all other warranties, representations, conditions or other terms, express, implied, statutory, contractual or otherwise, including, without limitation, any warranty of merchantability, suitability or fitness for any purpose, or absence of infringement of any claim in any intellectual property right covering the Products.

17  |  WAIVERS

17.1 Failure by AQURATE to enforce at any time any provision of the GTCs shall not be construed as a waiver of AQURATE’s right to act or to enforce any such term or condition and AQURATE’s rights shall not be affected by any delay, failure or omission to enforce any such provision.

18  |  SEVERABILITY AND CONVERSION

18.1 In the event that any provision of the GTCs shall be held to be invalid or unenforceable, the same shall not affect in any respect whatsoever, the validity and enforceability of the remaining provisions between the parties and shall be severed therefrom. The pertaining provisions held to be invalid or unenforceable shall be reformed to meet the legal and economic intent of the original provisions to the maximum extent permitted by law.

19  |  SURVIVAL OF RIGHTS & HEADINGS

19.1 The parties’ rights and obligations shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, directors, officers, employees, agents and legal representatives. Termination of one or more of the parties’ rights and obligations for whatever reason shall not affect those provisions of the GTCs which are intended to remain in effect after such termination.

19.2 The headings contained in the GTCs are included for mere convenience of reference and shall not affect the construction or interpretation.

20  |  INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY

20.1 All intellectual property rights arising out of or in connection with the Products shall be the exclusive property of AQURATE.

20.2 AQURATE has not verified the possible existence of third-party intellectual property rights which might be infringed as a consequence of the sale and/or delivery of the Products and AQURATE shall not be held liable for any loss or damage in that respect.

20.3 The sale of Products shall not, by implication or otherwise, convey any license under any intellectual property right relating to the compositions and/or applications of the Products, and Customer explicitly assumes all risks of any intellectual property infringement by reason of the Use of the Products, whether singly or in combination with other materials or in any processing operation.

20.4 The Customer agrees to treat as confidential all information and all commercial and technical documents, as well as all objects entrusted to it by AQURATE and undertakes not to disclose and/or pass them on to third parties in any way whatsoever, except with the prior written authorization of AQURATE.

20.5 The Customer will ensure, under his sole responsibility, not to infringe any patent, trademark or other right of third party by using the Product.

20.6 Unless expressly agreed by a trademark license agreement, duly signed, no right, license and/or authorization to use the trademarks or trade name of AQURATE in relation to the marketing, promotion, use, distribution and/or resale of the products sold is granted to the Customer.

21  |  GOVERNING LAW AND VENUE

21.1 The parties’ rights and obligations arising out of or in connection with the Confirmed Order and/or the GTCs shall be governed, construed, interpreted and enforced in accordance with the laws of Malaysia, without regard to the conflict of law provisions thereof.

22.2 Any dispute, controversy or claims which the parties are unable to amicably resolve shall be submitted to the exclusive jurisdiction of the courts of Malaysia, provided that AQURATE shall always be permitted to bring any action or proceedings against Customer in any other court of competent jurisdiction. The language to be used in the arbitration shall be English.