SALES

1. Definitions

“Affiliate” refers to any Person that controls, is controlled by or is under common control with Buyer or Seller. The term “control” means the ownership, directly or indirectly, of fifty percent or more of the voting stock or equity interest of the subject Person.

“Business Confirmation” means the document issued by Seller confirming the terms of sale of the Product to Buyer.

“Buyer” means the person named in the Business Confirmation as purchaser of the Product.

“Contract” means a Business Confirmation and these Terms and Conditions.

“Incoterms” such as FOB, CIF, EXW, etc. are reference to the ICC’s Incoterms® 2010 unless otherwise agreed to in writing.

“Person” means any natural person, corporation, unincorporated organization, partnership, association, joint stock company, joint venture, trust or government, or any agency or political subdivision of any government, or any other entity.

“Product” means sugar, cocoa or coffee beans, as applicable, and as specified in the Business Confirmation.

“Rules” means the Contract Rules of the Association or Federation defined in the Business Confirmation.

“Seller” means NV Group Sopex SA or its Affiliate.

2. Contract

Seller’s sale of the Product to Buyer, as evidenced by the Business Confirmation, is strictly subject to these Terms and Conditions, which are incorporated into the Business Confirmation. In the event of any inconsistency among the documents comprising the Contract, the order of precedence shall be (i) the Business Confirmation, then (ii) the Terms and Conditions then (iii) any other incorporated standard terms and conditions.

3. Price

The Price payable for the Product shall be as per the Business Confirmation and as negotiated between Seller and Buyer.

4. Payment

a. Buyer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and Buyer shall not be entitled to assert any credit, set-off (whether legal or equitable) or counterclaim against Seller in order to justify withholding payment of any such amount in whole or in part.

b. Time for payment shall be of the essence and in case payment (or the mechanism for making payment) is not made (or put in place) strictly in accordance with the terms of the Contract or with Seller’s instructions, Seller shall have the right to terminate the Contract with all costs and consequences of such termination for Buyer’s account.

c. Without limiting (and without prejudice to) any other right or remedy of Seller either at law or under the Contract, if Buyer fails to make any payment due to Seller under the Contract on or by the due date for payment, Seller shall have the right, whether or not legal, arbitration or other proceedings are brought to recover the overdue amount, to

(i) charge interest on the overdue amount at the rate of up to 15% per annum, compounded quarterly and accruing on a daily basis from the due date of such payment until the date of actual receipt of payment of the overdue amount by Seller; and/or

(ii) recover any costs from Buyer incurred in relation to chasing and/or recovering the overdue amount

5. Quality

The quality of the Product shall be in accordance with the Business Confirmation. Quality, weight, packing and description of the Product shall be final at time and place of physical delivery as per certificates issued by a first-class independent supervision company of Seller’s choice and at Seller’s expense.

6. Delivery

a. The delivery terms for the Product are set forth in the Business Confirmation.

b. Buyer will take delivery of the Product during the delivery period reflected in the Business Confirmation. If Buyer is unable to accept timely delivery of the Product, then Seller, at its discretion and in addition to any other rights it may have or which may accrue, may cancel the delivery or shall be entitled to charge Buyer for all its reasonable expenses arising from storing the Product in question or attempting to make delivery thereof, as the case may be, including any increased duties, fees, taxes or other charges or tariffs resulting from any delivery delay.

7. Title and risk of loss

a. Title to the Product shall not pass until Seller has received payment for the Product in full in cash or cleared funds in accordance with the Contract or Seller’s instructions. Further, Buyer’s right to possession of the Product shall terminate immediately if any kind of action in relation to liquidation, insolvency or any commensurate or similar situation is taken against it. Seller shall be entitled to recover payment for the Product (whether in full or in part) from Buyer notwithstanding that title to the Product remains with Seller.

b. The risk of loss of or damage to the Product shall pass to Buyer when it passes the carrying vessel’s rail or is loaded on another carrying conveyance.

8. Insurance

Insurance, including marine insurance and war risk insurance, from port warehouse in country of origin to port warehouse at final destination shall be effected by the responsible party identified in the Business Confirmation with Lloyds and/or first class insurance companies and in accordance with the applicable Rules.

9. Taxes

In CIF and/or CFR sales, any taxation fee or levy whether existing or in future imposed by the country of destination, whether on freight, the Product or shipping, is to be for Buyer’s account.

10. Inspection

In CIF and/or CFR sales, any formalities which are required by the country of destination are the responsibility and expense of Buyer.

11. Licences

Seller shall be responsible for obtaining and securing any necessary export licence.
Buyer shall be responsible for obtaining any necessary import licence. The failure to obtain such a licence shall not be sufficient grounds for a claim of Force Majeure (defined below).

12. Force majeure

The performance of this contract is subject to force majeure in accordance with the applicable Rules.

13. Claims

Notwithstanding anything in the Contract to the contrary, Seller shall not be liable, in any event, for any loss of profit, loss of business or any indirect or consequential loss, costs or damages arising from any claim. Further, Seller shall be under no liability to Buyer whatsoever once Buyer has taken delivery of the Product and/or the Product has been combined with or added to any other product or substance and/or subjected to any process.

14. Assignability

Except to the extent provided herein, neither of the parties shall have any right to assign the Contract, or any rights or obligations hereunder, without the written consent of the other party; provided, however, that upon the sale of all or substantially all of the assets, business and goodwill of Buyer to another company, or upon the merger or consolidation of Buyer with another company, the Contract shall be binding upon both Buyer and the company purchasing such assets, business and goodwill, or surviving such merger or consolidation, as the case maybe, in the same manner and to the same extent as though such other company were Buyer.

Further, and notwithstanding anything herein to the contrary, Buyer consents to the assignment from time to time of any part of Seller’s rights to payment hereunder in respect of invoices addressed to Buyer or its Affiliates (a “Receivable”), and in connection with such assignments, and notwithstanding any confidentiality agreements to the contrary, Seller may disclose the terms of the contractual arrangements between Buyer and Seller solely to assign any Receivables and in order for assignee to collect such payments to which it may become entitled. Subject to the foregoing, the Contract shall inure to the benefit of, and be binding upon, the parties hereto and their legal representatives, successors, and permitted assigns.

15. Disputes

All disputes arising under, out of or in connection with this Contract shall be referred to arbitration in accordance with the applicable Rules. Nothing in this clause shall prevent either party from pursuing any interim or conservatory relief to which it is entitled in any court or jurisdiction.

16. Third party rights

The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third parties) Act 1999 by any person that is not a party to it.

17. Governing law

The Contract shall be governed by and constructed in accordance with English law.

18. Status and powers

a. Buyer and Seller are fully and properly established under the laws of the jurisdiction of their incorporation. Buyer and Seller have the power

(1) to execute this Contract and any other documentation relating to this Contract to which they are party;

(2) to deliver this Contract and any other documentation relating to this Contract that is required by this Contract to deliver; and

(3) to perform their obligations under this Contract.

b. Buyer and Seller have taken all necessary action to authorise such execution, delivery and performance. Such execution, delivery and performance do not violate or conflict with

(1) any law applicable to Buyer and Seller;

(2) any provision of their constitutional documents; (3) any order or judgment of any court or any governmental agency or regulator applicable to Buyer and Seller or any of their assets; or (4) any contractual restriction binding on or affecting Buyer and Seller or any of their assets.

c. Each of Buyer and Seller has obtained all governmental and other consents, approvals, licences and authorisations ("Consents") required in respect of this Contract, and such Consents will remain in full force and effect at all relevant times and all conditions of such Consents have been complied with.

19. Default

a. Strictly without prejudice to the rights and remedies of the parties at law or under this Contract, Seller shall have the following additional rights and remedies upon the occurrence of an event of default.

b. For the purposes of this clause, an event of default (“Event of Default”) shall mean any of the following:

(i) the failure of Buyer to pay when due any required properly invoiced amount due under the Contract or any other contract with Seller or any of its Affiliates within 3 (three) Business Days following written notice thereof;

(ii) the failure of Buyer to establish an operable documentary or standby letter of credit, performance bond, or guarantee in conformity with and/or as required by this Contract strictly within the time limits required by this Contract and/or by law and/or, if applicable, within any extended time limit that may have been agreed;

(iii) the failure of Buyer to comply with any terms under the Contract (whether this Contract provides for single or multiple deliveries) or any other contract with Seller or any of its Affiliates and such failure remains uncured for 10 (ten) Business Days following written notice thereof;

(iv) the inability or admitted inability or declared inability of Buyer to pay its debts as they fall due or declaration under any applicable law or if the value of Buyer’s assets is at any time less than the amount of its liabilities (taking into account contingent and prospective liabilities);

(v) the institution or commencement or the threat of commencement of any corporate action or legal proceedings in respect of Buyer in relation to the suspension of payments, any moratorium of any indebtedness, dissolution, administration, reorganisation, composition, compromise, arrangement with creditors, winding up, liquidation, receivership, compulsory management or bankruptcy or any analogous procedure in any jurisdiction;

(vi) the occurrence of a material adverse change in the financial standing or creditworthiness of Buyer, or of any party supporting or purporting to support, guarantee and/or fulfil any of the obligations of Buyer whether by means of a credit support instrument or otherwise (the “Credit Support Provider”) when compared to Buyer’s or a Credit Support Provider’s financial standing as at the date of the contract, which change (in the sole opinion of Seller), affects Buyer’s or the CreditSupport Provider’s ability to perform its financial obligations in respect of this and/or any other contract between the parties.

c. Upon the occurrence of an Event of Default, Seller may in its sole and absolute discretion and notwithstanding any implied terms arising by virtue of prior contrary course of dealing or rule of law or doctrine to the contrary:

(i) notify Buyer of a delivery termination date (which shall be no earlier than the date of such Notice and no later than 20 (twenty) days after the date of such notice) on which the delivery in respect of which the Event of Default has occurred shall terminate (the “Delivery Termination Date”); and/or

(ii) notify Buyer of a contract termination date (which shall be no earlier than the date of such notice and no later than 20 (twenty) days after the date of such notice) on which this Contract and the transactions contemplated hereunder shall terminate (the “Contract Termination Date”); and/or

(iii) withhold any payments due to it until such Event of Default is cured; and/or

(iv) suspend performance of its obligations under this contract until such Event of Default is cured.

d. If a notice of a Delivery Termination Date or a Contract Termination Date (a “Termination Date”) is given under this clause:

(i) the Termination Date will occur on the designated date whether or not the relevant Event of Default is then continuing; and

(ii) any accrued rights or obligations that have arisen prior to the Termination Date shall not be affected.

20. Exclusions

Unless the Contract contains any statement expressly to the contrary, the provisions of neither the Convention relating to a Uniform Law on the International Sale of Goods 1964 nor the United Nations Convention on Contracts for the International Sale of Goods 1980, shall apply thereto.

21. Final agreement

The Contract represents the final agreement of the parties with respect to its subject matter and all prior oral or written undertakings or agreements are superseded and merged therein.

22. Severability

In the event that any provision of these Terms and Conditions is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms and Conditions, and such determination shall not affect the validity and enforceability of any other remaining provisions.

23. Confidentiality

The Contract and its terms shall remain confidential to the parties unless otherwise mutually agreed.

24. Anti-bribery and anti-money laundering

a. The parties each agree and undertake that in connection with this Contract, they will comply with all applicable laws, rules, regulations, decrees and/or official government orders relating to anti-bribery and anti-money laundering; and

b. The parties each further agree and undertake that they will not, directly or indirectly:

(i) pay, offer, give, promise to give or authorise the giving of a bribe to any person, individual or entity (including, without limitation, a public official);

(ii) request, agree to receive or accept a bribe from any person individual or entity; or

(iii) engage in any other transaction in each case if this is in violation of or inconsistent with the anti-bribery and /or anti-money laundering legislation of any government.

25. Sanctions

a. The parties hereto warrant that they, their Affiliates, any vessel nominated or to be nominated pursuant to this Contract and any owners or charterers of such vessel, do now comply, and have at all times complied, with all economic sanctions, trade embargoes and export laws, regulations, decrees, orders or requirements administered or enforced by the UN, the USA, the EU or any other relevant sanctions authority related to transactions with restricted countries, persons and entities (“Sanctions”) and are not currently blacklisted or sanctioned in any way.

b. The parties further warrant that they intend this Contract to comply (and believe that it will comply) with all applicable Sanctions and have not taken (or refrainedfrom taking) any action that would cause itself or the other party to be in contravention of any applicable Sanctions.

c. Without prejudice to the generality of the foregoing, Buyer undertakes that the Product will not be resold by it to a restricted or blacklisted destination, person or entity, or be transported on a vessel or by other carrier owned, flagged or chartered by any country, person or entity which may cause Seller or any other person to be in violation of Sanctions. Should payment for the Product be impeded by Sanctions, Buyer shall use best endeavours to make payment by alternative lawful means that do not contravene Sanctions.

d. For FOB sales, Buyer to declare destination upon booking vessel, excluding U.S Quota and/or any sanctionable country or destination according to Sanctions, which Buyer expressly declares having knowledge of and which country/destination Seller has the right to reject.

e. The warranties and undertakings in this clause shall be deemed to be conditions of the Contract.