Version of 04 February 2020

4.5

General Terms and Conditions of Sale of DFE Pharma (USA)LLC("DFE Pharma")

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1.1

1.2

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2.1
2.2

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3.1

3.2

3.3

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4.1

4.2

4.3

4.4

Scope of Application
All orders placed with DFE Pharma (USA) LLC(“DFE Pharma”) by a counterparty (“Purchaser”), or offers made by DFE
Pharma to a Purchaser, for the sale and delivery of goods and/or related
services, and the relationship between the parties in respect thereto, aregoverned by and shall be subject exclusively to these ‘General Terms andConditions’ (the “Terms”), unless expressly agreed to in writing by theparties. The applicability of any terms and / or conditions of Purchaser
is hereby expressly rejected. Any modification of these Terms shall bevalid only if expressly agreed to in writing by the parties.
“Commercial Terms” shall mean any document (including e-mail)of DFE Pharma that sets out one or more commercial terms such as delivery
term, price, quantity and description of the goods, and duration.
Unless expressly agreed to in writing by the parties, these Terms comprise theentire agreement between the parties concerning the sale of goods and/or
related services, and supersede any other agreement or understanding
between the parties. No conflict between these Terms, any Commercial Terms
and any orders or other documents is intended; however, in the event of aconflict, the Commercial Terms shall control followed by these Terms.
OrdersOrders placed by Purchaser are non-binding until accepted in writing by
DFE Pharma. Orders are subject to modification by DFE Pharma.
Once accepted by DFE Pharma, orders are deemed to be irrevocable forPurchaser. DFE Pharma will use commercially reasonable efforts to fulfill allorders it accepts. However, DFE Pharma shall be entitled to change or cancel
an order at any time prior to delivery, on written notice to Purchaser.
Requirements Goods and Warranties Purchaser
DFE Pharma represents to Purchaser that all goods sold to Purchaser (a)will on delivery comply with such specifications as may have been agreed by
DFE Pharma and Purchaser in writing (the “Specifications”), (b) aremanufactured in accordance with good manufacturing practices, (c) are
subject to a quality assurance system to ensure compliance with theforegoing, and (d) will be free of any liens and encumbrances on delivery. No
warranties (whether express or implied) are given by DFE Pharma.
Purchaser warrants to DFE Pharma that (a) it will not, and shall procurethat its employees, agents and / or sub-contractors shall not, offer to, solicit
or accept from any public official or private person any undue pecuniary orother advantage in connection with any order, and (b) where applicable,
Purchaser’s products, into which any DFE Pharma goods are incorporated,
do not infringe on the intellectual property rights of any third party.

in full. DFE Pharma may perfect its security interest. The goods shall remain
personal property even if attached to realty or other property, until thepurchase price is fully paid.
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5.1

5.2
5.3
5.4

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6.1
6.2

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7.1
7.2

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8.1

8.2

Purchaser shall verify that the goods ordered and the accompanying
documentation, packaging, labelling and/or other information meet the
governmental requirements necessary in the country of destination and shall 9
inform DFE Pharma with respect thereto in writing.
9.1
Prices and Payment
Unless expressly agreed otherwise, DFE Pharma’s current price list at thetime of delivery shall apply to an order. DFE Pharma reserves the right toadjust the prices, or change the price list in its sole discretion. DFE Pharma
shall notify Purchaser of any price adjustments in writing as soon as possible
before the effective date of such adjustment or change. In the event
Purchaser does not agree to the proposed price adjustment or change to theprice list, DFE Pharma shall have the right to terminate the order withimmediate effect and without liability of any kind to Purchaser.
Prices are quoted in accordance with applicable Incoterms and do not include
VAT, import and export duties, excise duties and other taxes or levies imposedor charged in relation to goods and their transportation costs. Unless expressly
agreed otherwise in writing, all such taxes, levies and/or duties shall be
Purchaser’s responsibility.
Payment shall be made by Purchaser at the agreed time or, if no time has been
agreed, net fourteen (14) days from the invoice date in U.S. dollars and in
the manner stipulated in the invoice. DFE Pharma reserves the right at all
times to demand full or partial advance payment and/or otherwise require
security for payment in the form of a bank or group guarantee or otherwise.
Purchaser shall pay all invoices of and sums due to DFE Pharma in full
without any deduction, withholding, counter-claim or set-off of any nature.
If Purchaser fails to remit any due payment, all outstanding amounts shallbecome immediately due and payable, and Purchaser shall be deemed to be
in default with regard to all payments with immediate effect, without noticeof default being required. Purchaser shall pay all costs related to or resulting
from DFE Pharma's collection of any payments after default.
Purchaser grants DFE Pharma a purchase money security interest in the goods
purchased and any proceeds therefrom until the purchase price is paid

9.2

Delivery
Unless the parties expressly agree upon a different method of delivery,
deliveries are Free on Board (FOB) DFE Pharma’s (or 3rd party’s) premises per
the most recent Incoterms. DFE Pharma reserves the right to deliver in batchesor partial orders. For the purpose of these Terms, each batch or partial
delivery is deemed to be a separate delivery.
Purchaser is responsible for the provision of sufficient loading and unloading
facilities for fast unloading.
The goods must be accepted in full by or on behalf of Purchaser at the time ofdelivery unless the goods exhibit visible damages or non-conformance withapplicable requirements.
If Purchaser fails to accept the goods, it will be held in default without noticeof default being required. Any costs associated with such non-acceptance willbe the responsibility of Purchaser and the risk of loss or damage shall in any
event pass to Purchaser when DFE Pharma offers the goods for delivery.
Packaging Materials
The packaging materials, if not intended for once-only use, including but notlimited to pallets, crates, containers and other transport resources, remain theproperty of DFE Pharma, even if Purchaser has paid a deposit for them.
Purchaser must return the packaging materials, sorted and cleaned, as soon
as possible, but at latest, by the next DFE Pharma delivery to Purchaser (or, if
there is no next delivery, Purchaser shall return the packaging materials to DFE
Pharma immediately). The costs of these returns shall be for the account ofPurchaser.
Transfer of Risk and Ownership
Risk of loss or damage shall transfer to Purchaser upon delivery of the goodsin accordance with these Terms.
Title of the goods will remain with DFE Pharma until Purchaser pays thepurchase price in full. For as long as title of the delivered goods is reserved by
DFE Pharma, Purchaser does not have the right to dispose of them other thanin the ordinary course of business, or to establish any liens on them.
Intellectual Property Rights
All intellectual property rights in and / or related to delivered goods and/or
rendered services and/or any know how related thereto (“IPR”) are owned byand shall remain with DFE Pharma and are not transferred to Purchaser byvirtue of these Terms or any contract with DFE Pharma, even if the goods,
services and / or related know how have been designed, developed or compiled
specifically for Purchaser.
Purchaser shall immediately alert DFE Pharma in writing if it becomes awarethat a third party infringes or threatens to infringe any IPR of DFE Pharma,
or if third parties should be of the view that any goods infringe their own
industrial or intellectual property rights or know how.
Confidentiality
Purchaser shall, and shall procure that its officials, employees, agents, subcontractors and / or any other parties engaged by it shall, protect theconfidentiality of all confidential or proprietary information that it may obtainfrom and / or relating to DFE Pharma (“Confidential Information”), whether
such information is designated as confidential or not, and shall not use such
Confidential Information other than to comply with its obligations in terms of
any order and / or these Terms.
If Purchaser should be obliged to disclose Confidential Information on thebasis of a court or regulatory order, Purchaser shall be entitled to do so,
provided that it obtains the prior written approval from DFE Pharma, and limits
such disclosure to the necessary minimum. DFE Pharma shall not unreasonably
withhold its approval.

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Force Majeure10.1 DFE Pharma will not be liable for any delay or failure in performing its
obligations towards Purchaser because of circumstances beyond its
reasonable control (“Force Majeure Events”), such as, without limitation, actsof god, war, riot, flood, industrial or labor disputes, acts of state or
governmental action, animal diseases, failure or delay on the part ofsubcontractors, supplier or carriers, devaluation, increase of levies or taxes ofwhatever nature, significant change of prices of raw materials or energy, or
lapse, withdrawal or non-extension of the required permits, certificates,
licenses and such like.
In the case of a Force Majeure Event, DFE Pharma shall promptly notify

damages and liabilities arising from any of the following: (a) errors and / orPurchaser in writing and the obligations of DFE Pharma shall be, to theomissions in the Artwork, (b) the infringement of third party intellectual
extent that it is so prevented or impeded, suspended. The reciprocal
property rights by the Artwork, and (c) misleading and / or illegal advertising.
obligations of Purchaser shall also be suspended without liability for breach or
non-performance.
14.5 Purchaser’s sale, delivery or other form of provision of the goods to third
10.2 If a Force Majeure Event affecting DFE Pharma can reasonably be expectedparties shall take place in the original and undamaged composition andto continue in excess of two months, or has already lasted for a period of
packaging of the goods per unit originating from DFE Pharma.
two months, either party may cancel the relevant order or terminate the 14.6 Purchaser shall comply with the DFE Pharma group policies of conduct,
relationship on written notice to the other party with immediate effect,
available at www.DFE Pharma.com.
without thereby creating any rights to compensation.
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Termination
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Inspection, Notification, and Claims
15.1 DFE Pharma shall be entitled to suspend its performance, or to terminate
11.1 Purchaser agrees to inspect and count the goods upon delivery, and advise
its relationship with Purchaser, and / or to terminate these Terms by written
DFE Pharma as soon as possible, but in any event by no later than two
notice to Purchaser, in full or in part and with immediate effect, if:(2) business days after delivery, of any damage to or shortages of goods.
(a) Purchaser fails to comply with one or more of its obligations towards
11.2 Claims concerning “hidden” defects shall be made within two (2) business days
DFE Pharma or to meet them on time or in full, or in case it isafter they could have been reasonably discovered by Purchaser, however,established that full compliance will be impossible;
within six (6) months at the latest following delivery.
(b) Purchaser commits any willful misconduct or any gross negligence;
11.3 Any complaints shall contain an accurate description of the failure. Complaints(c) Purchaser contravenes any policy of conduct of DFE Pharma, available
shall not relieve Purchaser from its payment obligations.
at www.DFE Pharma.com;
11.4 If Purchaser fails to comply with the above, Purchaser will be responsible for(d) any advantage is offered or granted by Purchaser in connection with anany damage or shortages.
order to a person forming part of the DFE Pharma group;
11.5 All rights of Purchaser to submit a claim shall be null and void if: (i) the goods(e) Purchaser is declared bankrupt or its bankruptcy or (provisional)
have been transported, handled, used, processed or stored by or for Purchaser
suspension of payment is obliged for or granted, if its business isincorrectly or contrary to the instructions given by or on behalf ofliquidated or discontinued or it otherwise proves to be insolvent; and / or
DFE Pharma; (ii) the goods have been processed by or on behalf of(f) in the opinion of DFE Pharma, major changes are made to the direct orPurchaser; and /or (iii) Purchaser acts contrary to Article 14.5 herein.
11.6 In cases of a justified and timely claim relating to defective goods, Purchaser’s
indirect ownership or control ratios at the business of Purchaser.
exclusive remedy in connection with the goods supplied will be replacement 15.2 DFE Pharma shall be entitled, at any time and for any reason, to terminateof damaged or defective goods, at DFE Pharma’s discretion. In order forthe relationship with Purchaser on three months’ written notice to Purchaser.
DFE Pharma to replace goods, the defect must be confirmed in writing
15.3 If and when terminated in accordance with the aforegoing provisions,
by DFE Pharma.
Purchaser shall not have any claims against DFE Pharma as a consequence ofsuch termination.
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Liability and Indemnification
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Miscellaneous
12.1 In all cases where DFE Pharma is required to pay compensation for 16.1 Purchaser shall not assign the relation with DFE Pharma or any order without
damages, such compensation for all and any claims against DFE Pharma shallthe prior written consent of DFE Pharma. The consummation of aper calendar year not exceed the lower of the amount paid by Purchaser for
reorganization, merger, share exchange, consolidation, or sale or disposition of
the particular type of goods in such calendar year or USD 1,000,000 (oneall or substantially all of the assets of Purchaser shall constitute a change of
million U.S. dollars).
control situation for which the prior written consent of DFE Pharma is
12.2 DFE Pharma shall not be liable to Purchaser for any variations of goods fromrequired. DFE Pharma has the right to engage and delegate rights and / ortheir specification which are immaterial to the performance of the goods.
obligations to third parties with respect to performance by DFE Pharma of its
12.3 DFE Pharma shall not be liable to Purchaser under any circumstances for lostobligations in terms hereof.
income or profits, loss of business or clients, loss of goodwill, loss of use, 16.2 All notices, requests, demands, waivers, consents, approvals and / or otherincreased cost of working, penalties, fines, and punitive damages, damage
communications (collectively, “Notices”) required in terms hereof to be given
resulting from late delivery, damage to reputation, or any special, indirect,
in writing, may also be given electronically (i.e. by e-mail), with the exception
consequential damages or losses, whether in contract or tort, even if it hasof (a) any Notices to be given in terms of clause 15 (Termination) above, andbeen advised about the possibility of those damages.
(b) any modifications and / or alterations of the provisions hereof, both of
12.4 Purchaser agrees to defend, indemnify and hold harmless DFE Pharma (andwhich shall be given and made in writing other than by e-mail.
its affiliates) from any and all direct and indirect claims, damages and 16.3 In the event that one or more of the provisions or portions of these Terms isliabilities arising from any of the following: (a) breach of these Terms or
determined to be illegal or unenforceable, the remainder of the Terms shallCommercial Terms by Purchaser; (b) personal injury or property damage
not be affected thereby and each remaining provision or portion thereof shallcaused by or in connection with Purchaser’s use of the goods; and (c)continue to be valid and effective and shall be enforceable to the fullest extent
infringement of patents, trademarks and/or copyrights caused by or inpermitted by law. The unenforceability of any provision of these Terms in any
connection with Purchaser’s use of the goods.
competent jurisdiction shall not affect the enforceability of any otherprovision(s) or of such provision in any other competent jurisdiction.
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Product Recall
16.4 These Terms as well as any disputes arising therefrom will be governed by
DFE Pharma may notify and require Purchaser to remove from the market any
Delaware law without regard to its rules regarding conflicts of laws. Anyof DFE Pharma’s goods deemed by DFE Pharma to be defective, or in which a
disputes and claims that the parties cannot amicably resolve shall be settled
defect threatens to manifest itself, within a reasonable period of timein the competent courts in Bergen County, New Jersey.
stipulated by DFE Pharma. Purchaser shall promptly comply with thisobligation and such instructions.
16.5 Each party is acting as an independent contractor. Nothing in these Terms shallbe construed as any other arrangement. Neither party has the authority to
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Miscellaneous Purchaser Obligations
enter into any agreement, or bind or make any warranty or representation on
14.1 Purchaser shall at all times refrain from doing anything that might adversely
behalf of the other party except as and to the extent provided by these Terms.
influence the quality, safety of the goods, reputation of DFE Pharma, and16.6 Each party and counsel for each party has reviewed these Terms, and the rule/ or any of the trademarks or other IPR of DFE Pharma.
14.2 Purchaser shall not, without the prior written permission of DFE Pharma,of construction to the effect that any ambiguities are to be resolved against
make any direct or indirect use of its relationship with DFE Pharma forthe drafting party shall not be employed in the interpretation of these Terms.
promotional activities or other purposes.
16.7 Except as explicitly set out herein, any failure or delay on the part of either
14.3 Purchaser shall store all goods delivered by DFE Pharma separate from
Party in exercising any right or remedy hereunder shall not be held to be aeach other and from any other goods of Purchaser, and the goods shall be
waiver of such right or remedy or any other provision of these Terms.
clearly identifiable.
16.8 The terms, provision, representations and warranties contained in these
14.4 If Purchaser provides any artwork, label(ling), translations, or similar materials
Terms that by their sense and context are intended to survive the performanceor content (collectively “Artwork”), Purchaser shall be solely responsible andhereof by either or both parties hereunder shall so survive the completion of
liable for such Artwork, including its quality, correctness, and its compliance
performance and termination of these Terms, including, without limitation,with all applicable laws. Purchaser shall indemnify and hold harmless
confidentiality obligations and the making of any and all payments hereunder.
DFE Pharma (and its affiliates) from any and all direct and indirect claims,