Buyer’s Standard Terms & Conditions

STANDARD PURCHASE TERMS

1. APPLICABILITY

   These standard purchase terms ("Terms") are the only terms and conditions applicable to any sale by the seller (“Seller”) to the Agilex entity the Seller invoices for such sale (“Agilex”). The Seller is deemed to have agreed to these Terms notwithstanding inconsistent or additional provisions on the Seller's offer, order, confirmation or otherwise, which are expressly excluded hereunder. Differing or additional terms and conditions provided by Agilex under separate written contract, or under the provisions set forth in the document or order, if any, to which these Terms are attached, form one and part of the same contract ("Order"), but prevail only to the extent of any inconsistency or conflict with these Terms.

2. PURCHASE & SALE

   Agilex agrees to purchase from the Seller, and the Seller agrees to sell and deliver to Agilex, goods or materials in such quantities, specifications and at such times as Agilex may from time to time specify in the Order to the Seller (“Goods”). No Order shall oblige Agilex to purchase any minimum volume, quantity, amount or all or any portion of its requirements of Goods from the Seller. No Order is valid unless issued by Agilex on its official, electronic or otherwise, generated order addressed to the Seller with Agilex’s order number.

3. ORDER CHANGES
   

   Agilex may at any time by written notice to the Seller propose changes within the general scope of the Order. Should any such change increase or decrease the cost of, or time required for, the performance of the Order, an equitable adjustment may be requested by Agilex or the Seller in the price, the delivery schedule, or both. Agilex will not be bound by any such changes unless confirmed by Agilex in writing. Nothing in this clause shall relieve the Seller from proceeding without delay in the performance of the Order as changed.

4. PRICES. INVOICES. PAYMENT

   All prices payable by Agilex for the Goods are stated in the Order and include the cost of packaging and delivery and shall be on the delivery term to the destination specified therein or, if not so stated, Delivered Duty Paid Agilex receiving site (“Destination”), except that, unless otherwise included or exempt, such prices are exclusive of any applicable value-added tax which shall be added to the price. Agilex having made the Order shall make payment to the Seller by wire transfer or other Agilex designated payment method within the time period stated in the Order. Payment by Agilex shall not prejudice Agilex’s right thereafter to contest any invoice or challenge or reject any Goods that do not conform strictly to the Order. Agilex may withhold, deduct or set off the price of any non-conforming Goods and any other sums due from the Seller to Agilex against any payment due from Agilex to the Seller (including from any affiliate of Agilex).

5. DELIVERY
   

   Incoterms 2020 or the then prevailing Incoterms in force at the time of the Order shall apply, save that, to the extent there is any inconsistency or conflict between the applicable Incoterms and these Terms and/or Order, these Terms and/or Order shall prevail.Time is of the essence in respect of the Seller's obligation to deliver. The Seller shall deliver the Goods to the Destination by the due date(s) stated on the Order or as otherwise agreed in writing by Agilex (“Delivery Date(s)”). The Seller shall notify Agilex if and promptly when it anticipates or reasonably should anticipate that delivery will not be made by the Delivery Date(s). If the Seller fails to deliver the Goods to the Destination by the Delivery Date(s), Agilex may, without prejudice to any other rights it may have under the Order or otherwise, terminate the Order, without liability to the Seller. The Seller warrants that upon the earlier of payment for the Goods or delivery at the Destination, as the case may be, the Seller shall convey to Agilex good and marketable title to all Goods free of any liens or encumbrances of any kind whatsoever. Risk of loss passes upon Agilex’s acceptance of the Goods as conforming to the Order. Agilex shall not be obliged to buy or pay for, and Agilex or its designated representative may at any time after delivery, reject all or any part of the Goods that Agilex determines does not conform to the Order. The Seller shall retain or reacquire title to, and bear all risks of loss of, such non-conforming Goods, and shall at its own expense be responsible for the collection, return or disposal thereof according to Agilex instructions. Agilex shall not be responsible for any pallets, containers or other materials used in the delivery of the Goods and the Seller shall indemnify Agilex against any claims, damages and liabilities arising from the use or disposition of the same.

6. QUALITY ASSURANCE & INSPECTIONS 

   The Seller shall hold and maintain in good standing all required and applicable authorizations and permits to manufacture, supply and transport the Goods. The Seller must inform Agilex promptly in the event any such authorization or permit is not obtained in a timely manner or is withdrawn or is threatened to be withdrawn. Agilex or its designated representatives shall have the right from time to time during business hours after reasonable notice to the Seller to (i) inspect the Goods, or manufacturing of them, wherever they are located; (ii) remove samples of the Goods for inspection and testing; and (iii) obtain factory site and other information from the Seller to confirm conformance of the Goods with agreed specifications. No such inspection, testing or inquiry shall be deemed to be or result in any variation of any of the Seller’s obligations or a waiver of Agilex’s rights hereunder, nor does it prevent Agilex to verify the Goods upon delivery.

7. WARRANTY
   

   The Seller warrants that all Goods: (i) strictly conform with the description, quality and agreed specifications stated in the Order; (ii) are merchantable, fit for their intended purpose or implied purpose, and free of defect(s); (iii) consist of ingredients or materials that are not contaminated, mislabelled, or otherwise unfit for human consumption; (iv) are free from impurities that affect or may affect Agilex’s ability to use or resell the Goods; and (v) conform with good manufacturing practices and all applicable law, including rules and regulations, including without limitation, those related to packaging, manufacturing, intellectual property rights, fair trade and anti-trust, customs, labor, employment, working conditions, worker health and safety, branding and packaging, testing, labelling, adulteration, contamination, certificates and claims such as defined in 2008/1334/EEC and 2012/872/EEC and Title 21 of the US Code of Federal Regulations, or other applicable regulation, or health and environmental matter. The Seller further warrants and undertakes to Agilex that (a) it has all necessary right, title, license and authority to enter into the Order and to perform all its obligations hereunder; (b) the Seller's performance of all its obligations hereunder does not violate any applicable law, statute, regulation or ordinance; (c) it has appropriate agreements with its employees and contractors to perform its obligations under the Order; and (d) the Goods are free of any liens, encumbrances or defects.

8. CONFIDENTIALITY

   Any specifications, samples, designs, formulations, trade secrets, financial data, or other information that Agilex identifies as or otherwise deems confidential and discloses to the Seller in connection with the Order shall remain the exclusive property of Agilex and shall, along with any information derived from the same, be kept confidential by the Seller and its employees, representatives and agents and shall not, without Agilex’s prior written consent, be disclosed to any third party or used except for purposes of the Order. The Seller shall remain responsible for any breach of confidentiality obligations by its employees, representatives and agents. Notwithstanding the foregoing, such information shall not be deemed confidential to the extent that the Seller can demonstrate by written record that it was previously known by the Seller, became generally available to the public through no fault of the Seller, was disclosed to the Seller by a third party without breach of any confidentiality obligation, or is specifically required to be disclosed by law or legal process. If the Seller is required to disclose confidential information by law or legal process, the Seller must give Agilex prior written notice as is reasonably practicable and reasonably assist Agilex in obtaining a protective order or other injunctive relief. In addition, the Seller shall keep its relations with Agilex confidential, and shall make no use of Agilex’s corporate name or logo on any of Seller’s communication material or on any support, including websites, presentations or paper documentation, except to the extent that Agilex consents in writing prior to such use.

9. INTELLECTUAL PROPERTY
   

   The Seller warrants that the sale, use or incorporation of the Goods, and rights furnished or licensed hereunder, shall be free and clear of infringement of any patent, copyright, trademark or other intellectual property rights. The Seller shall indemnify, defend and hold Agilex, its affiliates and its customers harmless from any and all claims, expenses, liability and loss of any kind (including but not limited to reasonable attorney’s fees) arising out of such claims, suits or actions related to such infringement which claims, suits or actions the Seller hereby agrees to defend.

10. REMEDIES
    

    If the Seller fails to perform in accordance with the Order or is in breach thereof (“Breach”), and without prejudice to any other rights or remedies Agilex may have under the Order or otherwise, Agilex shall have the right, at its option, to: (i) require the Seller to promptly cure such Breach by delivering conforming Goods at no additional charge or expense to Agilex; (ii) source the Goods from a third party supplier, with the Seller to bear the difference between the price paid or payable by Agilex for the Goods and the price paid or payable by Agilex to that third party supplier; (iii) demand the Seller refund the price paid for the Goods; or (iv) terminate the Order and/or recover all damages, losses, costs and expenses in connection with the Breach. The Seller agrees to comply with any such option exercised by Agilex.

11. INSURANCE
    

    The Seller shall, at its sole expense, take out and maintain insurance covering the Goods and its performance under the Order in compliance with applicable legal requirements and including but not limited to commercial general liability (including products liability, completed operations and third party liability coverage) at no less than 3 million Swiss francs (or its equivalent) per occurrence and 10 million Swiss francs (or its equivalent) in the aggregate. The insurance shall be in the name of the Seller, contain an additional-insured clause benefiting Agilex, be with insurers of international repute, and be primary to any insurance of Agilex. Upon request, the Seller shall deliver a copy of any such insurance to Agilex.

12. INDEMNITY

    The Seller shall indemnify, defend and hold Agilex and its affiliates harmless from and against all claims, liabilities, damages, losses, judgments, settlements and expenses (including reasonable attorney’s fees) arising from or in connection with the Goods, or the manufacture or supply of it, or any act or omission of the Seller or of any of its employees, agents, subcontractors or assignees. This indemnity shall survive delivery and acceptance of the Goods and shall apply without regard to whether the claim, damage, liability or expense is based on breach of contract, breach of warranty, negligence, strict liability or other tort.

13. ENVIRONMENTAL, HEALTH AND SAFETY LAWS

    For all potentially hazardous Goods, the Seller shall submit information to Agilex which shall at a minimum provide the information necessary to comply with the environmental, health and safety laws applying in the jurisdiction for which the Goods are intended.
    

14. FORCE MAJEURE

    Acts of God, fires, floods, weather, epidemics, pandemics, war, or other cause(s) beyond the reasonable control of a Party, not reasonably foreseeable, not caused by acts or omissions of the Party affected and that could not have been avoided through a work-around plan, which prevent Seller from providing or procuring the Goods, Agilex from receiving or using Goods or either Party from performing under this Order (“Force Majeure Event”) will suspend the affected Party’s respective obligations under this Order during the period required to remove such Force Majeure Event. The affected Party will promptly notify the other Party of the Force Majeure Event and its cause. Upon cessation of the Force Majeure Event the obligations of the Parties shall resume in accordance with the terms and conditions of this Order. The Parties agree and confirm that company acquisition, mergers, breakdown of machinery or equipment, inability to source raw materials on time, economic hardship (due to, for example, rising or falling market prices or changes in taxes or duties) or labor strikes shall not be considered as Force Majeure Events, but shall be at a Party’s own risk. If Seller’s supply of Goods is limited as a result of a Force Majeure Event, Seller shall allocate the Goods to Agilex’s and its Affiliates’ Purchase Orders and thereafter distribute any available Goods among its other customers in such manner as Seller may reasonably determine. If the affected Party is Seller and the period of the Force Majeure Event lasts longer than fifteen (15) calendar days, then Buyer is entitled, at any time thereafter, while such Force Majeure Event continues, to terminate this Order without any penalty, liability or further obligation therefore, immediately upon notice to Seller, or, at its sole option, purchase alternative products from other suppliers in which case the obligations of Buyer and Seller under this Order , if any, will be reduced accordingly.

15. TERMINATION

    Agilex may terminate any Order, in whole or in part, at any time and for any reason, by written notice to the Seller. Upon receipt of such notice, the Seller will, unless otherwise directed, (i) immediately discontinue all work and the placing of all orders for materials, facilities and supplies in connection with the performance of the terminated Order; and (ii) will promptly cancel all existing orders; and (iii) terminate all subcontracts in so far as such orders or subcontracts are chargeable to the Order. Agilex shall have no liability to the Seller beyond payment of any balance owed for Goods purchased hereunder, delivered and accepted by Agilex, prior to Seller's receipt of the notice of termination. In particular, Agilex shall not be liable for any payment to the Seller if termination is due to the Breach of the Seller. Agilex shall, in the case of any such termination, have no liability to compensate the Seller for any loss of profit, loss of revenue, loss of business, or any indirect, special, punitive or consequential losses or damages whatsoever.

16. EXPORT CONTROL

    The Seller shall comply with all applicable export control laws and shall not, directly or indirectly, export, reexport, ship or divert any Goods which it knows or reasonably should know will violate any Sanctions as defined in clause 17 below, or otherwise in violation of applicable national legislation. The Seller shall indemnify and hold Agilex harmless from and against any and all claims, losses, costs and damages arising from the Seller's failure, intentional or unintentional, to comply with this clause 16 and clause 17 below.

17. TRADE COMPLIANCE
    

    The Seller represents, warrants and undertakes that neither the Seller, its affiliates or any of its respective directors, officers, agent, employees or any person or entity acting on behalf of any of them, is, or is directly or indirectly, owned or controlled, by a person or entity that is or will be designated on any economic sanctions or export controls list of any governmental authority, including the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) Specially Designated Nationals and Blocked Persons List. The Seller promises that no action of the Seller or any of its affiliates, and its respective directors, officers, agents, employees or any person or entity acting on behalf of any of them, or any other transaction contemplated hereby or the fulfilment of the terms hereof, will result in a violation of any trade sanctions, foreign trade controls, export controls, non-proliferation, anti-terrorism and similar laws administered by OFAC, the U.S. Departments of State or Commerce in the United States, the European Union and its Member States, Switzerland, the United Nations Security Council (“UNSC”), or any other relevant sanctions authority which prohibit the sale, export or diversion of the Goods to sanctioned countries or nationals of those countries, as well as to persons or entities whose names appear on the List of Specially Designated Nationals and Blocked Persons maintained by OFAC (collectively, “Sanctions”). Neither party shall be obliged to perform any obligation otherwise required by the Order, including without limitation an obligation to (i) perform, deliver, accept, sell, purchase, pay or receive monies to, from, or through a person or entity, or (ii) engage in any other acts if this would be in violation of, inconsistent with, or expose such party, a parent company or affiliate of such party, or any other person related to that party to punitive measure under any Sanctions. If the Seller should learn that any of the representations made in this clause are no longer accurate, or learns of any violation of Sanctions by the Seller that may involve the Goods, the Seller shall inform Agilex immediately in writing. Furthermore, the Seller shall provide all information, assistance and cooperation requested by Agilex in connection with Agilex’s compliance efforts, including taking corrective or remedial action recommended by Agilex and/or by providing certifications of compliance with relevant Sanctions as requested by Agilex.

18. DATA PRIVACY
    

    If the performance of the Order requires Seller to collect, receive, store, transmit, retransfer, dispose or otherwise use (collectively “process” or “processing”) any information relating to an identified or identifiable natural person (“Personal Data”), Seller undertakes to (i) process the Personal Data solely for the legitimate purposes of performing its obligations under the Order and for no other purpose, and only in accordance with the local law governing such processing; (ii) to provide the subject of the Personal Data with the same rights in relation to their Personal Data, including but not limited to rights of access, rectification or erasure available to such individual as they would have in the country in which he or she resides; (iii) ensure that any persons it authorises to have access to the Personal Data will respect and maintain the confidentiality and security of the Personal Data; (iv) provide all necessary information to Agilex to demonstrate compliance with this clause and allow for and contribute to audits, including inspections, conducted by Agilex or another auditor mandated by Agilex; and (v) as soon as possible after delivery of the Goods or termination of Seller’s relationship with Agilex, delete all existing copies of Personal Data or return any Personal Data to Agilex, at Agilex’s discretion. Seller warrants that it has full legal authority to process the Personal Data as contemplated, it has in place appropriate technical and organisational measures to prevent unauthorised or unlawful processing or accidental loss or destruction of, or damage to, such Personal Data, and it has adequate security programs and procedures to ensure that unauthorised persons will not have access to the Personal Data. Seller shall be responsible for, and remain fully liable to, Agilex for the actions and omissions of Seller, all its affiliates and its respective employees, representatives and subcontractors concerning the treatment of Personal Data as if it were Seller’s own actions and omissions.

19. COMPLIANCE WITH AGILEX POLICIES
    

    Seller represents and warrants that it complies and shall comply in full at all times with Agilex’s Code of Ethics (“Code of Ethics”), Agilex’s Human Rights Policy (“Human Rights Policy”) and Global Anti-Corruption Policy (“GACP”), as well as the acknowledgement of Agilex’s Responsible Sourcing Policy (“RSP”), all of which may be amended from time to time. The Code of Ethics, the Human Rights Policy and the RSP are available at https://www.firmenich.com/en_INT/sustainability/leading-in-integrity.html,the Human Rights Policy at https://www.firmenich.com/en_INT/sustainability/commitment-to-human-rights.html and the GACP is available at https://www.firmenich.com/uploads/files/company/Global_Anticorruption_Corporate_Policy_2020.pdf. The Code of Ethics and the aforementioned policies are incorporated by reference in their entirety into the Order. Seller acknowledges that it has read and understood the Code of Ethics, the Human Rights Policy, the GACP and the RSP.. Seller acknowledges that Agilex may request Seller to participate in questionnaires or routine audits to demonstrate Seller’s compliance with its obligations under this Section, and Seller agrees to provide its support, cooperation and answer truthfully to any questions raised in connection thereto.  Failure to do so shall be deemed a material breach of this Order.

20. GOVERNING LAW AND JURISDICTION
    

    The Order and any sale made hereunder shall be governed by the laws of the place of business of the Seller as specified on the Order, or where Agilex elects to refer the dispute to arbitration in accordance with this clause, then by the laws of the seat of the arbitration, excluding in each case the United Nations Convention on Contracts for the International Sale of Goods or any successor to it. Agilex and the Seller shall attempt to amicably resolve any dispute arising out of or in connection with these Terms and the Order, including any question regarding their existence, application, validity or termination. Should they fail to do so within sixty (60) days from the date of the first written notice of any such dispute, then any such dispute shall be (1) submitted to the exclusive jurisdiction of the courts of the place of business of the Seller as specified on the Order, or (2) in Agilex's sole discretion and provided Agilex sends a notice to this effect within ninety (90) days of the date of the first written notice of any such dispute, resolved by way of arbitration in the following manner: (a) if Agilex is incorporated within the Asia-Pacific region, referred to and finally resolved by arbitration in Singapore administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause; (b) if Agilex is incorporated within North America or South America, referred to and finally resolved by arbitration in New York, USA, administered by the American Arbitration Association in accordance with its International Arbitration Rules for the time being in force, which rules are deemed to be incorporated by reference in this clause; (c) if Agilex is incorporated within Europe or within any other place not referred to in (a) or (b) above, referred to and finally resolved by arbitration in Geneva, Switzerland in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules.  Any such arbitration shall be adjudicated by a sole arbitrator and the language of the arbitration shall be English.  Notwithstanding any other term of these Terms or the Order, Agilex may commence court proceedings relating to any dispute arising from these Terms or the Order at any time where Agilex seeks urgent interlocutory relief.

21. MISCELLANEOUS

    (1) The Seller shall not assign, transfer or otherwise dispose of the Order, or any rights or obligations under it, to any third party without the prior written consent of Agilex. Agilex may, without the Seller’s consent, transfer or assign the Order to any affiliate of Agilex. All rights and obligations shall inure to the benefit of and be binding on any permitted assignee or successor of each party.
    
    (2) Failure of Agilex to insist upon performance of any provisions of the Order or to exercise any rights hereunder shall not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such right.
    
    (3) If any enforceable term, provision, undertaking or restriction contained in the Order are held by a court of competent jurisdiction to be invalid, void or unenforceable (in whole or in part), the remainder of the terms, provisions, undertakings and restrictions contained herein will remain in full force and effect and will in no way be affected, impaired or invalidated.
    
    (4) Notwithstanding any other provision of the Order, the parties agree that those obligations which by their nature are intended to survive expiration or termination, will survive.
    
    (5) Notices will be given in writing, including by email, and such notices are deemed received upon delivery confirmation or email receipt certificate, as applicable by the contact set forth in the Order or to any other business address furnished in writing by the intended recipient to the sender.the intended recipient at its email address set forth in the Order or to any other business address furnished in writing by the intended recipient to the sender.

December 2020