Penta Terms and Conditions for Purchase of Materials

(a) These terms and conditions of purchase govern the purchase of raw materials, ingredients, components, parts, and/or products, inclusive of labeling and packaging, specified on the Purchase Order (“Materials”) by Penta Fine Ingredients, Inc. (“Penta” or “Purchaser”) from the seller, supplier, or vendor identified on the Purchase Order (“Supplier”). These terms and conditions are collectively referred to as the “Terms.”

(b) The Terms, together with the Purchase Order to which these Terms are attached, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

(a) Penta may order Materials from Supplier by submitting to Penta a purchase order in the form agreed by the parties in writing (each, a “Purchase Order”). Supplier must acknowledge receipt and acceptance of each Purchase Order, as well as provide a shipment date (“Confirmed Shipment Date”) for the Material ordered, within seventy-two (72) hours of Supplier's receipt of the Purchase Order.

(b) Once a Purchase Order is accepted by Supplier: (i) Supplier shall provide, and Penta shall purchase, the Material in the amounts set forth in such Purchase Order; (ii) the Terms shall apply; and (iii) any provision in any Order Confirmation, invoice or other document issued by Supplier that includes additional terms or inconsistent terms with any provision of these Terms shall be of no force or effect.

(a) Supplier will not make any changes to Purchase Orders that Penta has submitted to Supplier, including type of Materials or quantity, unless Penta has requested the change in writing or has otherwise approved the change in writing.

(b) Penta may request changes to Purchase Orders with respect to quantity and type of Material at any time prior to the Confirmed Shipment Date.

(c) Penta shall have the right to cancel a Purchase Order in whole or in part, and without charges, expense or liability, any time prior to shipment of the Materials.

(a) Unless otherwise agreed in writing by the parties, Seller shall deliver the Materials to the shipping address set forth on the Purchase Order (the “Delivery Point”). Delivery shall not be deemed to be complete until all the Materials have been received and accepted by Penta.

(b) All Materials shall be packaged, marked and otherwise prepared for shipment by Supplier (i) in suitable containers, (ii) in accordance with sound commercial practices, (iii) in a manner sufficient to prevent damage and (iv) in compliance with all Applicable Laws.

(c) Supplier will promptly notify Penta if Supplier fails to ship Material on or before the Confirmed Shipment Date. If Supplier fails to ship Material more than seven (7) days following the applicable Confirmed Shipment Date, Penta may, at its option: (i) cancel all or any portion of the Purchase Order; or (ii) require Supplier to deliver the delayed quantity of Material using expedited shipping at Supplier's sole expense.

(a) Title to the Materials shall pass to the Penta at the Delivery Point. The risk of loss or damage in transit shall be upon Supplier. Supplier shall maintain insurance covering all damage to or loss of the Materials incurred during shipment and file insurance claims. Penta shall not pay any unauthorized freight or fuel charges.

(a) Upon receipt of Material from Supplier at the Delivery Point, Penta or its designee will inspect the Material to confirm compliance with the Specifications. Penta will notify Supplier of any Material shortage within 10 days after receipt of Material at the Delivery Point. In addition, Penta will notify Supplier of any failure of the Material to conform to the Specifications (each such Materials, a “Non-Conforming Materials”) within 30 days after receipt.

(b) At Supplier's sole expense and option, Penta will return the Non-Conforming Materials to Supplier. With respect to remedy, Supplier will, at Penta's option, either deliver replacement Material within seven (7) days at no additional cost or issue Penta a full refund.

(a) The Seller shall issue an invoice to Penta for all amounts due and owing upon delivery of the Materials. Penta shall make all payments within 45 days of receipt of the invoice.

(a) Supplier shall comply with all applicable laws, regulations, rules, guidances, and ordinances, including without limitation the U.S. Federal Food, Drug, and Cosmetics Act (“Applicable Laws”). Supplier shall maintain in good standing all licenses, permissions, authorizations, consents and permits that are required to carry out its obligations.

(a) If either Party in good faith determines that a recall (each, a “Recall”) involving a Material is warranted, such Party will immediately (within 24 hours) notify the other Party in writing. Supplier shall be responsible for all costs associated with the Recall and any related claims or proceedings.

(a) Supplier represents and warrants that all Materials supplied to Penta strictly conform to the specifications approved by both parties (“Specifications”).

(b) Supplier represents and warrants that all Materials provided by Supplier under these Terms are fit for human consumption and shall be manufactured, packaged, labeled, stored, and shipped in accordance with current good manufacturing practices (cGMPs) and Applicable Laws.

(a) All non-public, confidential, or proprietary information of Penta shall be treated as “Confidential Information”. Supplier will at all times maintain the Confidential Information of Penta in strict confidence and use such Confidential Information solely as and to the extent necessary to perform its obligations hereunder.

(a) Supplier will, at all times, indemnify, defend, and hold harmless to the fullest extent permitted by law Penta and its affiliates from all losses, damages, costs, fines, penalties, charges and expenses arising out of Supplier's breach of its covenants, representations and warranties; injury or death resulting from Supplier's manufacture or supply of Materials; any costs associated with any Recall; or the gross negligence or willful misconduct of Supplier.

(b) PENTA SHALL NOT BE LIABLE TO SUPPLIER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THESE TERMS OR THE MATERIALS. PENTA'S TOTAL, CUMULATIVE LIABILITY SHALL BE LIMITED TO THE TOTAL AMOUNTS THAT PENTA PAYS TO SUPPLIER UNDER THE APPLICABLE INVOICE.

These Terms and the relationship between the Parties will be governed by and construed in accordance with the laws of the State of New Jersey without regard to choice of law principles. Each Party submits to the exclusive jurisdiction of the federal and state courts located in New Jersey.

All notices, request, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order.

Supplier shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Penta. Any purported assignment or delegation in violation of this Section is null and void.

The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties.

(a) If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision.

(b) Provisions of these Terms which by their nature should apply beyond their Terms will remain in force after any termination or expiration of these Terms including, but not limited to Sections 8, 9, 10, 11, 12, 13, 17.