General Sales Conditions

1.- Contract and Parties.

(a) The Specific Conditions, as well as any addendum other than these General Sales Conditions issued by IBK Tropic, S.A., Plaza Tetuán, número 40-41, 2ª planta, despacho 40, 08010 – Barcelona (hereafter, “IBK”) addressed to the client, in addition to these General Sales Conditions (collectively, the “Contract”) constitute the complete agreement between the Client and IBK in regard to the Products. On placing an order (hereafter, the “Order”), subscribing the Contract or cancelling the Order as per the Contract (hereafter, “Cancelation”) with IBK, it will be construed that the Client has read and accepted IBK’s General Sales Conditions, waiving their own terms and conditions, in any.

(b) For the purposes of this Contract, the Client does not include its subsidiaries or associates, except when specifically included in the Contract. The person signing in representation of the Client or handling the Order will have sufficient power and authority to enter into the Contract, which is binding, on behalf of the Client, its subsidiaries and associates, if they were included in it.

(c) In the event of a contradiction or controversy regarding these Sales Conditions and the Specific Conditions, the Specific Conditions will prevail, with the exception of articles 2, 9, 12, 13 and 14 of the General Sales Conditions, which will always prevail over the Specific Conditions.

(d) IBK expressly reserves the right to modify the General Sales Conditions at any time.

2.- Offers and Orders.

(a) The quotes prepared by IBK, in any of their forms, will not be binding to the same, constituting merely an invitation for the Client to place an Order. Quotes based on estimated amounts will be subject to increases in the event the amounts effectively purchased are lower than those quoted.

(b) The Orders will not be binding to IBK until they have been accepted in writing (hereafter, the “Confirmation”). If the Confirmation turns out to be different to the Order in any respect, the Confirmation’s terms and conditions will be applied, unless the Client replies to the Confirmation in writing, specifically and without delay.

(c) IBK may reject an Order without stating the reasons.

(d) Any Order or Cancellation by the Client will only be binding once IBK has confirmed the Order. If the Client places an order based on an outdated price list, IBK reserves the right to reject the Order and/or cancel the Confirmation.

(e) Any change to the Order processed following a request by the Client that entails more costs than those IBK would originally have taken into account when determining the price, must be paid for by the Client. Nevertheless, the change involving a reduction in costs will not entitle the Client to any rights in terms of receiving a discount over the purchase price. Notwithstanding the foregoing, IBK may decide, at their own discretion, that said changes may result in a discount over the purchase price.

(f) In the event a Cancellation by the Client affects two or more sales contracts or orders, the amounts will be cancelled in the same order as they were placed or subscribed.

(g) In the event the Client places an Order that might affect an existing Sales Contract, said Order will be considered a Cancellation of the existing Sales Contract, unless the Client confirms something else when placing the Order at the latest.

(h) In addition to any damages applicable, a total or partial cancellation by the Client will grant IBK the right to recuperate the following from the Client: (i) in the case of Products that may be resold by IBK, their price; or (ii) in the event they are Products that may not be resold by IBK, a compensation equal to fifty percent (50%) of the price of the Products. In any event, if the amount due for damages incurred by IBK were higher, it will be within its right to claim suitable compensation.

(i) IBK may cancel the Order if the Client fails to fulfil any of the provisions established by means of these General Sales Conditions and the Specific Conditions, or if the Client declares bankruptcy or is immersed in a situation of corporate reorganisation, including liquidation.

(j) If the Client’s Order is cancelled by IBK pursuant to letter (f) above, any amount outstanding payable by the Client to IBK will automatically come to its maturity and become callable.

(k) All Sales Contracts and orders between the Client and IBK will be subject to any event involving scarcity and/or any other circumstances beyond IBK’s control that might render the supply of the Products impossible.

3.- Pricing.

(a) Prices will be agreed on in writing and, except when otherwise stated, they will be expressed in Euro, excluding VAT, transport costs, tariffs and special taxes corresponding to any other taxation due.

(b) Price lists will only be valid during the period of reference, notwithstanding IBK’s right to adjust pricing or remove Products from the list during the period of reference, at their discretion and even when the product has not been sent, if this is due to the fact that the cost price of certain factors has increased.

(c) If, at the end of the delivery period foreseen in the Sales Contract, there were amounts still outstanding by the Client, IBK will be entitled to increase the price of the corresponding Sales Contract’s amounts outstanding by 1% per month. Similarly, IBK will be entitled to demand payment for any additional damages caused.

(d) In the event an Order is cancelled, or a Sales Contract is cancelled or terminated early by the Client, IBK will be entitled to claim compensation for any damages caused.

4.- Delivery.

(a) IBK will endeavour to do whatever is within its power to meet with the established delivery date and time.

(b) IBK’s obligation to supply the Products will be suspended while the Client defaults in its payments to IBK or any company linked to IBK (article 42 of the Commercial Code) without having to provide notification and without prejudice to IBK’s or the respective company’s right to claim compensation.

5.- Transport and Risks.

(a) all transport will be carried out according to the Incoterms agreed on in the Specific Conditions, or failing this, (Ex-Works), from the factory or production facility.

(b) In the event of a justified complaint against IBK due to a significant delay in the delivery not caused by force majeure, the maximum amount IBK will be liable for in terms of damages caused to the Client will be limited to the value of the Products affected. This measure will be deemed to fully indemnify the Client, who accepts this and may not exercise or start any other claims or enter into legal proceedings, whatever their nature.

6.- Quantity and Quality.

(a) IBK guarantees that the Products’ quality will be satisfactory and meet with the specifications agreed on in writing, if they exist. Any other guarantees will be excluded to the fullest extent permitted by the law.

(b) For certain Products, IBK may present a quality report as agreed on between the Client and IBK. IBK will be held harmless from any consequences derived directly or indirectly from the use of the Products by the Client prior to having obtained the complete results from this quality report.

(c) The amount registered by IBK at the time of sending will be key. When the number of Products delivered turns out to be higher or lower than that requested by an amount not exceeding 10%, IBK will decide whether it has correctly met with its contractual obligations, and the Client will not be within its right to reject the Products. The Price payable by the Client will correspond to the number of Products effectively delivered. The Client accepts and acknowledges that it is not entitled to request a discount or any other compensation derived from the deviation interval of the amount of Product.

7.- Acceptance, Inspection and Claims.

(a) The Client must accept delivery of the same immediately on arrival. Any costs incurred by IBK due to the unjustified refusal by the Client to accept delivery of the Products will be borne by the Client, including unloading costs (when it lasts more than three (3) hours), transport and storage.

(b) On arrival of the Products and before they are sold or resold, the Client will be responsible for verifying the Product’s condition, quality and quantity, in addition to providing conformity with their specifications, if applicable. Any visible faults in the Products and/or their packaging must be pointed out in the delivery note, in order that the Client may present a claim for these visible damages. In any event, the Client must carry out testing to check the Products.

(c) All claims must be notified in writing to IBK within 24 hours at the very latest. Any defects that may have gone unnoticed even after diligent inspection must be notified to IBK within three (3) days counted from the moment they are discovered. All these claims must be sent to IBK via email (with read receipt), certified mail (with acknowledgement of receipt) or courier to IBK’s sales manager responsible for the client.

(c) IBK will not accept any claims once the Products have expired or once (6) months have elapsed from the date the Products were delivered.

(d) Under no circumstances will products delivered in keeping with the Client’s instructions and specifications be considered faulty.

(e) Clients will not be entitled to claim for defects in the event the Products have been incorrectly handled or stored by or on behalf of the Client.

(f) Any defects must be checked jointly by IBK and Client representatives within a reasonable time once the defect has been notified by the Client. In the meantime, the Client must take any and all necessary measures that might be of interest to the parties.

(g) As for justified or accepted claims, at its own criteria, IBK will: (i) supply additional or replacement Products and bear the costs; or (ii) partially or totally reimburse the amount invoiced or issue a credit note. These measures will be considered to fully indemnify the Client, who may no longer present any claims or enter into legal proceedings, whatever their nature.

8.- Payment of invoices.

(a) Unless otherwise stated, payments will be made to IBK in the terms foreseen in the invoice within thirty (30) calendar days counted from the day following issuance of the invoice, and by means of a bank transfer to the IBK account indicated in the invoice. The amounts on the invoice will be callable and due without any discount or compensation, except through express written consent by IBK.

(b) Payments will be made out to IBK’s registered address.

(c) Any claims relating to the invoice must be presented to IBK within the (7) calendar days following receipt of the invoice and through the channels described in point 7 (c) above.

(d) Prices will be payable in the currency mentioned in the invoice. Any losses derived from exchange rate volatilities will be borne by the Client, unless otherwise agreed on in writing.

(e) All amounts must be paid in Euro in their totality regardless of whether there exists the possibility of changing into an official currency that exists in the Client’s country, if agreed on between the parties and if so stated in the invoice.

(f) The very fact of having defaulted on the payment, even when partially, on the date of maturity, will be considered a breach, and there will be no need to notify the Client.

(g) Delayed payments to IBK will automatically generate interests, without the need to notify it, at the 3-month Euribor rate plus 700 basis points over the amount (or the part outstanding) of the invoice by day of delay from the day following the date of maturity and until the total amount has been made good, without prejudice to any other compensation that may correspond to IBK due to damages caused.

(f) All expenses incurred by IBK corresponding to collection activities due to delays in payment (including, without limitation, any reasonable fees for lawyers and prosecutors, experts, costs or any related judicial expenses) will be borne by the Client.

(h) IBK may immediately suspend and/or cancel the totality or part of the sale of the Products not yet delivered to the Client until such a time as IBK has received full payment for the outstanding invoice, or when payment has been sufficiently guaranteed.

9.- Retention of Title.

(a) The Products will continue to belong to IBK until the respective invoice or invoices have been made good in their totality by the Client.

(b) Without prejudice to IBK retaining ownership, the Client will handle the Products delivered with due diligence and having been correctly ensured. Until such a time as ownership is granted to the Client, the same may not process or resell the Products, except in what concerns their normal activities, and nor may they pledge or grant any other rights over the Products to a third party.

10.- Force Majeure.

(a) It is understood that neither party will fail to fulfil their contractual obligations on account of a delay in the fulfilment or a non-fulfilment, if said delay or non-fulfilment were originated by a cause that may reasonably be understood to be beyond their control, including, but not limited to fortuitous cases, explosions, floods, extreme climate conditions, fires, accidents, wars, terrorism, social unrest, trade union conflict or actions, strikes, lock-outs, raw material supply interruptions, import/export regulations or embargos.

(b) If a party were impeded due to this supposition, it will notify the other party of the suspension without delay. Either party whose obligations may have been suspended as described previously will resume fulfilment of these obligations once the situation has been resolved, and must notify the other party.

(c) If the situation continued for more than sixty (60) calendar days, either party may terminate the contractual relationship with immediate effects.

11.- Termination.

(a) Without prejudice to any other contractual sanctions, the parties may immediately terminate the contract, be this totally or partially, by informing the other party via certified mail (with acknowledgement of receipt), or via courier if (i) either of the parties incurred in an essential breach of its contractual obligations that may not be resolved, or in case when it may be resolved, when it has not been resolved within thirty (30) days counted from the notification received from the party in breach; (ii) if a party declared bankruptcy, liquidation, if a liquidator were assigned to them or if they entered into insolvency proceedings; or (iii) if a party ceased or threatened to cease activities.

(b) Any Order or Cancellation in force as of the date the resolution is notified and whose fulfilment has not yet been started, as appropriate, will be cancelled at the criterion of the party not in breach.

(c) On the effective date of termination, the Client will proceed to the liquidation and acquisition of all the Products already produced, as well as the packaging materials acquired by IBK in the framework of the contractual relationship between the parties. The Client will make good any and all raw materials acquired by IBK or placed at their disposal on request by the Client that have not yet been used in the Products.

12.- Limitation of Liability.

(a) Each of the parties will compensate the other for any damages or losses caused due to intentional or negligent breach of the contractual relationship. The obligation of indemnifying the other party will include direct damages caused by the breach if there exists reasonable cause. The party must notify of a breach and of any relevant facts as soon as possible after having learnt of it.

(b) IBK will not be accountable for defects or damages: (i) as a consequence of defects from third-party products (including, without limitation, any other ingredient present in the Client’s products other than the Products); (ii) caused by incorrect information supplied by the Client if the information received has been reasonably verified by the Client and its incorrection has not been discovered; (iii) occurred after modifications or interventions to the specifications carried out by the Client or a third party other than IBK; (iv) caused by a non-commercial use of the Products; (v) caused by the Client during its manufacturing process; and (vi) caused by a use of the products contrary to IBK’s instructions or recommendations of use.

(c) IBK will not be responsible for delays: (i) caused by the Client or by any third party under the Client’s responsibility; (ii) caused by Force Majeure, as indicated in point 10 above; (iii) derived from a request for modification by the Client in regard to the Product specifications indicated by the Client itself, the content of the Order and/or any other aspects of the Sales Contract.

(d) Without prejudice to what is established in sections 5 (b) and 7 (g), the maximum amount IBK will be liable for before the Client or third parties for damages will be limited to the amount the Client has paid for the Products the claim is in reference to.

(e) Under no circumstances will IBK respond to the Client or any other third party for any loss of profits or business directly or indirectly derived from the contractual relationship between the parties, nor for any losses or damages, costs or expenses, including, without limitation, damages to financial goodwill, loss of sales or profits, downtimes, production failures, product disfunctions and any other derived from or relating to the non-fulfilment of the guarantee or the contract.

(f) None of what is foreseen herein will limit either party’s responsibility in the case of a fraudulent declaration, intentional offence or when said limitation is not allowed by the law in force.

13.- Intellectual and Industrial Property Rights.

(a) IBK will remain the owner of any intellectual property developed exclusively by itself in relation to the Products, including any specifications and recipes. IBK will furnish the Client with any necessary licenses to use this intellectual property as required in order to be able to incorporate the Products in the Client’s product line. This license will expire, although this does not apply to already acquired Products, as soon the Client stops acquiring commercial amounts from IBK.

(b)  The Client will retain ownership of the intellectual property developed exclusively by itself in relation to the Products, and furnish IBK with the necessary licenses to use this intellectual property for the fulfilment of the contractual relationship between the parties.

(c) In regard to any intellectual property developed jointly by the parties, IBK will be granted ownership, unless otherwise agreed.

14.- Confidentiality.

(a) The parties will maintain confidentiality, and refrain from revealing to third parties: (a) the terms of their contractual relationship; (b) any confidential, sensitive or private information relating to activities and products pertaining to the other party (including, but not limited to, technical and commercial knowledge, specifications, recipes and processes) the party may come to reveal (hereafter, the “Revealing Party”) in writing, electronically or verbally while their contractual relationship is in force, except when this revelation is expressly authorized in writing and authenticated by the Revealing Party.

15.- Miscellaneous Provisions.

(a) No modification, amendment or waiver of these IBK General Sales Conditions will be binding to either party unless carried out in writing and authenticated by both parties’ signatures.

(b) If any of the provisions of IBK’s General Sales Conditions were or became null or unenforceable, be this totally or partially, said nullity or unenforceability will not affect the validity of the remainder of the provision or the remaining provisions.

(c) IBK may assign its contractual obligations and/or parts thereof, commission its obligations or assign its rights to any IBK subsidiary. IBK may not assign its obligations as foreseen in this contract to a third party without consent by the Client, with the exception of IBK’s right to assign the right to the collection of any outstanding payments by the Client to third parties. The Client may not assign any of its rights or obligations as foreseen in the contractual relationship with IBK to third parties (including subsidiaries) without prior written consent by IBK.

16.- Applicable Law and Controversy.

(a) The clauses that are commonly used in the commercial relationship between the parties will be construed pursuant to the Incoterms®2010 terms, and any allusion to an Incoterm term will be understood as an allusion to Incoterms®2010.

(b) IBK’s General Sales Conditions, as well as the legal relationships between the Client and IBK, will be governed by Spanish Law.

(c) Any conflict that may arise from an Order, Cancellation, Sales Contract, the General Conditions, the Specific Conditions, or any legal relationship between the Client and IBK will be resolved amicably and within the context of good faith negotiations.

(d) If said conflict proved unbridgeable, the parties subject themselves to the jurisdiction of the courts of Barcelona (Spain), and expressly renounce any other jurisdiction.

17.- Data Protection.

If, as a consequence of the commercial relationship between the Parties, IBK gained access to the Client’s personal data, their treatment by IBK will be carried out pursuant to the provisions of Organic Law 15/1999 of 13 December on Personal data Protection (Organic Data Protection Law – LOPD). Pursuant to the LOPDA, the Client’s identification data will be included in a file whose legal responsibility falls upon IBK, with registered office at Plaza Tetúan, número 40-41, 2ª planta, despacho 40, 08010 – Barcelona (Spain), for the purposes of upholding this contractual relationship, as well as to provide product publications and promotions to the Client. The Client may exercise its rights of access, rectification, cancellation and opposition by writing to IBK, as party Responsible for the file, to the aforementioned address, stating “P.D.” as a reference on the envelope, or by writing to the email

IBK TROPIC, S.A., Plaza Tetúan, número 40-41, 2ª planta, despacho 40, 08010 – Barcelona (Spain) – – Condiciones Generales de IBK Junio 2016 – IBK’s General Terms are available in English upon request.