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CAPSUGEL BELGIUM NV ('CAPSUGEL') - GENERAL TERMS AND CONDITIONS OF SALE

Effective as from February 1, 2015 to November 30, 2015

1) The present general terms and conditions, hereinafter referred to as the 'Terms and Conditions' exclusively apply to all sale agreements in relation to hard capsules and/or related products and services, concluded with CAPSUGEL, unless CAPSUGEL and the buyer expressly deviate from them in writing by mutual agreement.

2) Any general terms and conditions drawn up or used by the buyer solely apply if CAPSUGEL expressly accepts these in writing. In the absence of such express written acceptance, the Terms and Conditions shall always prevail over the general or special terms and conditions of the buyer.

3) In the event of contradiction between the Terms and Conditions and the special terms and conditions, or terms and conditions of supply or payment that are the subject of the framework or supply agreement, the special terms and conditions, or terms and conditions of sale, supply or payment shall prevail over the Terms and Conditions.

4) The sales agreement is created at the time that CAPSUGEL has confirmed its acceptance of the purchase order in writing to the buyer.

5) Changes to order(s) are only possible with the express written agreement of CAPSUGEL.

6) Having regard to the specific nature of the production process of the capsules, CAPSUGEL reserves the right to supply a greater or smaller quantity of capsules to the buyer than the ordered quantity, with the proviso that the difference between the ordered and supplied capsules can be a maximum 10% (more or less).

7) CAPSUGEL will indicate to buyer an expected delivery date in its order confirmation, which buyer acknowledges is a good faith estimate. CAPSUGEL expects the actual delivery date to be not more than 14 business days after the expected delivery date indicated in the order confirmation. If it is impossible to deliver within such date, for any reason whatsoever, the buyer- except in case of deliberate intent or deception- is not entitled to have the purchase agreement dissolved in whole or in part, nor can he claim compensation for the loss that he has incurred. In the event of abnormal delay to the delivery, the buyer is entitled to dissolve the sales agreement by registered letter and without recourse to a court of law, on condition that CAPSUGEL has still not made delivery within a period of 1 month after CAPSUGEL has been placed on terms to do so by the buyer by registered letter. The buyer expressly waives any other recourse, in particular the award of any form of compensation.

8) Unless expressly agreed otherwise, the capsules will be delivered EX WORKS from the warehouse where CAPSUGEL stores the capsules on behalf of the buyer (INCOTERMS 2010).

9) CAPSUGEL warrants that the capsules comply with the quality standards at the time of the order as described in the 'Technical Reference File' for hard capsules on the delivery date. CAPSUGEL only warrants that the capsules are suitable for the use for which they are usually intended. CAPSUGEL is therefore not liable for damage caused by unsuitable or injudicious use of the capsules.

10) Any complaints in relation to visible defects in the capsules and/or visible noncompliant supply of the capsules must- on pain of nullity - be notified in writing to the Customer Services Department of CAPSUGEL within one month after the capsules were delivered to the buyer.

11) Any complaints in relation to hidden defects in the capsules and/or hidden noncompliant supply of the capsules must- on pain of nullity - be notified in writing to the Customer Services Department of CAPSUGEL within 10 working days after the buyer detected or should reasonably have detected the defect.

12) In the event that the capsules supplied by CAPSUGEL to the Purchaser display defects and the buyer notifies this in accordance with Articles 11 and 12 of these Terms and Conditions, the liability of CAPSUGEL is limited to refunding the invoice price of the capsules or replacing such defective capsules. Any liability on the part of CAPSUGEL for hidden defects in the capsules is moreover in every instance limited to defects that manifest within 1 year after the capsules were delivered.

13) Capsules may not be returned without the prior examination of a representative sample and without CAPSUGEt:s express, prior, written authorisation. If a batch of Capsules is returned without the above authorisation, the customer will not receive a credit note. The customer is always responsible for the risks of any return.

14) CAPSUGEL never warrants that the colour combinations, printed text or logowhether or not in combination with a particular product- may be used by the buyer for circulation on the market. No warranty, guaranty or representation is given by CAPSUGEL as to the absence of any trademark, patent or other intellectual property right or concerning compliance with regulatory requirements. No statement made by CAPSUGEL shall be construed to be a recommendation or approval to infringe any patent or trademark or as an opinion regarding non-infringement of any patent or trademark or other intellectual property. The buyer also undertakes to indemnify CAPSUGEL from all claims of third parties for possible infringement of copyright, patents or trade mark rights or any other industrial or intellectual property rights.

15) All intellectual property rights relating to the capsules remain vested in CAPSUGEL. The buyer is obliged to comply with these rights and to notify CAPSUGEL without delay of any infringement of such rights.

16) Invoices from CAPSUGEL are due and payable on their due date to the account number mentioned in the invoice. The payment deadline is always 30 days from the invoice date, unless expressly agreed otherwise in writing. Invoices must be paid in the currency mentioned in the invoice. Payments made in currencies other than the one mentioned in the invoice will be made at the highest rate on the payment date.

17) If the buyer fails to pay the invoice by its due date, the buyer will automatically and without formal notice: a) be liable for late payment interest calculated from the due date of the invoice, in accordance with the Act of 2 August 2002 on combating late payment in commercial transactions. b) be liable for a lump sum compensation of 10% of the total invoice amount with a minimum of EUR 50. Payments made by the buyer will in the first place be used to pay the costs due from the buyer, then the interest payments and only in the final instance to pay the principal. If the buyer continues to fail to pay a due and payable invoice, then all outstanding invoices will automatically fall due and become payable without the need for prior formal notice, the foregoing without prejudice to the right of CAPSUGEL to dissolve the agreement without recourse to a court of law without prior notice of default against the buyer and to claim compensation. In the event that the buyer ceases payments or becomes bankrupt, every obligation to supply by CAPSUGEL shall cease and all outstanding invoices shall automatically fall due. CAPSUGEL is entitled to transfer its claims against the buyer to third parties. Setting-off of debts by the buyer is expressly excluded. CAPSUGEL may at any time and even if there are concurrent claims, including in the event of bankruptcy or judicial restructuring of the buyer, proceed to set off all or some reciprocal credits or debts existing between CAPSUGEL and the buyer. Such set-off may be performed regardless of the form or the object of the debts and claims, regardless of the currency or regardless of whether the reciprocal debts or claims are due or not. 

18) The delivered capsules remain the property of CAPSUGEL until the Purchaser has paid the associated invoices, possibly increased by interest and costs. Until such time as title to the capsules has been transferred to the buyer, it is prohibited for the buyer to dispose of, pledge or encumber the capsules with any right for the benefit of third parties, except for processing and sale by the buyer in the context of his normal business operations. The buyer undertakes to notify CAPSUGEL immediately by e-mail of any attachment levied by third parties on the sold capsules.

19) Except in the event of fraud or deliberate intent, CAPSUGEL is not liable or required to pay for any material damage other than to the supplied capsules themselves. CAPSUGEL is not liable or required to pay for intangible, indirect or consequential damage, including (but not limited to) loss of profits, loss of sales, loss of income, administration costs etc.

20) Either party shall be excused from the performance of its obligations in the event such performance is prevented by conditions constituting force majeure (including but not limited to acts of God, regulation or law of any government, war, civil commotion, strike or other labor disturbance, epidemic, failure of production facilities by fire, earthquake or storms, or non-availability of raw materials), and such excuse shall continue so long as such conditions continue.

21) Buyer represents, warrants, covenants and agrees that (i) it is not, and will not, in connection with any CAPSUGEL product, do business with or sell directly or indirectly to the Government of Iran, the Iranian Military or Iranian military or law enforcement purchasers or importers, Iran’s petroleum sector or Iran’s development of weapons of mass destruction, Iranian Specially Designated Nationals, or entities considered by the U.S. to be supporters of terrorism or proliferators of weapons of mass destruction (which entities can be identified by accessing the U.S. Office of Foreign Asset Control “Blocked Persons and Specifically Designated Nationals List” http://sdnsearch.ofac.treas.gov/); and (ii) it is aware of and, hereby confirms its compliance with, all applicable economic sanctions, including, without limitation, any applicable U.S. economic sanctions.

22) Subject to the specific rules provided for in the other articles in these Terms and Conditions, the sales agreement with the buyer will dissolve at any time with immediate effect, without recourse to a court of law without prior notice of default and without payment of any compensation, ' upon written notice by registered letter to the buyer in the following cases: (i) if the buyer defaults on any obligation pursuant to these Terms and Conditions or the agreement to which these Terms and Conditions apply and fails to comply with the obligation in its entirety within 30 calendar days after CAPSUGEL has sent the buyer a notice of default; (ii) in case of suspension of payments or application for bankruptcy or actual bankruptcy of the buyer (iii) in case of liquidation or cessation of the buyer's activities (iv) if attachment is made against the buyer.

23) If any provision or part of a provision in these Terms and Conditions or the sales agreement to which these Terms and Conditions apply is null and void or unenforceable, the remaining provisions of these Terms and Conditions or the sales agreements to which the Terms and Conditions apply shall remain in force undiminished. If the case arises, the parties shall in good faith agree on a provision that approaches as closely as possible the intended legal effect of the provision or part thereof that has been declared null and void or unenforceable.

24) These Terms and Conditions and the orders, quotations and sales agreements to which these Terms and Conditions apply are governed by Belgian law, to the exclusion of the Vienna Sales Convention. In case of disputes concerning these Terms and Conditions, orders, quotations and sales agreements to which these Terms and Conditions apply, the courts of Brussels shall have exclusive jurisdiction.