Terms and Conditions of sale for the USA

    The following Standard Terms and Conditions are applicable to all quotations and orders between Devro Inc. (“Seller”) and any buyer (“Buyer”) of products of Seller and are the only terms and conditions, oral or written, applying to the sale of products to Buyer except for additional terms consistent with these Standard Terms and Conditions on prices, quantities, delivery schedules, and the description and specifications of the products as set forth in an order form accepted in writing by Seller (collectively, the “Agreement”). Seller hereby objects to and rejects any other terms or conditions appearing on, incorporated by reference in or attached to any purchase order, acceptance, acknowledgment, invoice, transmittal or other document provided by Buyer. Seller’s failure to object to any provision contained in a document or communication from Buyer shall not be a waiver of these Standard Terms and Conditions. ALL SALES OF SELLER’S PRODUCTS ARE EXPRESSLY CONDITIONED ON BUYER’S ACCEPTANCE OF THESE STANDARD TERMS AND CONDITIONS. NOTWITHSTANDING ANYTHING IN BUYER’S PURCHASE ORDER, ACKNOWLEDGMENT, CONFIRMATION, OR SIMILAR DOCUMENT, BUYER SHALL BE CONCLUSIVELY PRESUMED TO HAVE ACCEPTED THESE STANDARD TERMS AND CONDITIONS UPON BUYER’S RECEIPT HEREOF WITHOUT PROMPT WRITTEN OBJECTION HERETO OR UPON BUYER’S ACCEPTANCE OF ALL OR ANY PART OF THE PRODUCTS ORDERED.
    All prices, whether shown in a price list or an order confirmation, or otherwise quoted or agreed upon, are subject to change without notice at any time prior to actual delivery of the products. Unless otherwise expressly provided by Seller, prices do not include sales, excise, privilege, use, value-added or other similar taxes now in effect or hereafter levied, transportation charges (such as freight, insurance, shipping, storage, handling, demurrage or similar charges), special packaging, marketing or testing, and Buyer shall pay all such charges, including applicable sales or other taxes levied with respect to the products and this Agreement (unless exempt therefrom), as well as any government fees levied, upon receipt of the related invoice from Seller and in accordance with this Agreement. In the event that any of the foregoing charges are specifically included in the purchase price of the products, any charges attributable to increases in applicable rates after the date such price is quoted to Buyer shall be added to the price. Such charges or taxes imposed on Seller or which Seller has a duty to collect in connection with the sale or delivery of the products in accordance with this Agreement shall be paid by Buyer and will appear as separate items on Seller’s invoice.
    Buyer shall pay the invoiced amount in full within thirty days from the date of such invoice. Subject to limitations imposed by applicable law, if payment is not received in full by the due date, a late charge will be added at the rate of 2% per month (or the maximum legal amount, if less) on the unpaid balance from the due date thereof. Said late charge shall be paid in addition to the contract price and shall continue to be paid until Seller receives the full purchase price. Buyer shall not, without Seller’s written agreement thereto, be entitled to deduct, counterclaim or set off against the price of any products, or against any other amount owing under this Agreement including under any invoice, any claim or alleged claim arising out of this Agreement or any other transaction with Seller. If Buyer’s financial responsibility shall become unsatisfactory to Seller at any time and for any reason, Seller shall have the right, in addition to whatever other rights Seller may have at law or equity, to require payment in advance or to obtain satisfactory security from Buyer before making any further deliveries. In case any payment is not made when due, Seller shall have the right, in addition to its other remedies, to seek specific performance of this Agreement, suspend any further deliveries, alter payment terms, or terminate this Agreement. Approval of credit for one or more deliveries shall not be deemed a waiver of this provision.
    The delivery dates provided are estimates only and are subject to change or cancellations. Seller may elect to deliver the products in installments, with each installment being considered a separate sale and invoiced as such, and Buyer shall timely pay each invoice. Any products indicated at any time as back-ordered shall be considered an installment delivery. The products shall be delivered F.O.B. Seller’s shipping point, and title to each shipment of products sold hereunder and the risk of loss thereon shall pass to Buyer upon such delivery. In the absence of shipping and packing instructions, Seller shall use its own discretion in choice of carrier and method of packing. Seller reserves the right to over-ship or under-ship products by up to 15%. Seller shall not be liable for any delay in the shipment or delivery or inability to complete the performance of the contract where the delay or inability is directly or indirectly the result of any of the following causes: fire, flood, storm or any other act of God, accident, riot, acts of terrorism or war, governmental acquisition or order, strikes or other labor disturbance, shortage in the supply of labor or materials, unavailability of transportation, inability to obtain fuel, material, equipment or parts, or any cause or causes beyond Seller’s reasonable control.
    Buyer shall accept any delivery of conforming products ordered by Buyer. Buyer shall be deemed to have accepted delivered products unless Buyer gives Seller notice in writing stating with specificity all defects and nonconformities upon which Buyer will rely to support its rejection (i) in the case of defects discoverable through inspection, within seven days after receipt of the product or (ii) in the case of defects not discoverable through inspection, within thirty days or other reasonable time established by Seller after receipt of the product. Failure to so act shall constitute an irrevocable acceptance by Buyer of the product. ALL DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SPECIFIED ARE WAIVED. If Buyer rejects any delivery of the products, Buyer shall return them to Seller, pursuant to Seller’s direction. No products may be returned without Seller’s express written approval in advance of return. Notwithstanding anything to the contrary, when any products shall have been altered from their original state, Buyer shall be deemed to have accepted such products. Buyer’s acceptance of products delivered under this Agreement shall be final and irrevocable. No attempted revocation of acceptance shall be effective, and Buyer shall be limited to the remedies specifically provided in this Agreement.
    Prices are based on Seller’s standard packaging. Seller reserves the right to package the products in pallets, bulk or individual cartons. Packaging will be standard commercial packaging and acceptable to commercial carriers. Special customer packaging will be furnished only when specified and expressly agreed to by Seller, and the cost thereof shall be borne by Buyer. All artwork and labeling used by Seller for the products shall be provided to Seller by Buyer. Buyer shall pay for the cost of any and all artwork, labeling proofs, printing plates and dies to be used in the production of labeling the product. Buyer represents and warrants that the artwork provided to Seller shall not infringe on any third party’s intellectual property rights, including, but not limited to, copyright, trademark or trade name, and Buyer further represents that all artwork provided to Seller shall comply with all applicable laws. Buyer shall indemnify, defend and hold harmless Seller and Seller’s parent, subsidiary and affiliate companies, and their respective shareholders, officers, directors, employees, representatives, and agents (collectively, the “Seller Parties”), from and against any and all third party claims, damages and expenses (including reasonable attorneys fees) arising out of any actual or alleged infringement or violation of any copyright, 2 trademark or other proprietary rights asserted against Seller as a result of Seller’s use of the artwork provided by Buyer.
    Seller warrants to Buyer that the products sold hereunder are free from defects in material and workmanship for six months following the date of delivery. EXCEPT FOR THE WARRANTIES IN THE IMMEDIATELY PRECEDING SENTENCE, SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. Seller’s warranty is conditioned upon the following: (i) Buyer delivering written notice of its claim under this clause to Seller within such warranty period, but not later than fifteen days after discovery of the defect which is the basis for its claim; (ii) Buyer delivering the alleged defective products to Seller F.O.B. Seller’s factory within thirty days after such written notice; and (iii) Seller determining (in its sole discretion) that such goods are defective and have not been subject to accident, abuse, neglect or misuse, and have been maintained in accordance with Seller’s recommendations and specifications.
    SELLER’S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT, NEGLIGENCE, OR STRICT LIABILITY) FOR ITS PRODUCTS SHALL BE LIMITED TO, AT SELLER’S OPTION, REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS OR SELLER’S REIMBURSEMENT OF THE PURCHASE PRICE OF SUCH NON-CONFORMING PRODUCTS. SELLER SHALL NOT HAVE ANY LIABILITY FOR LIQUIDATED DAMAGES, PENALTIES, FEES, OR FOR COLLATERAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING LOSS OF USE, INCOME OR PROFITS. THE AGGREGATE TOTAL LIABILITY OF ALL DAMAGES ARISING UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE CONTRACT PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM (OR CLAIMS) OF LIABILITY. Buyer shall indemnify, defend and hold harmless the Seller Parties from and against any and all third party claims, damages, and expenses (including reasonable attorneys fees) arising out of Buyer’s or its employees’, customers’ or agents’ use, storage, sale, processing or other disposition of the products. Additionally, Seller shall have no liability for an improper use, storage, sale, processing or other disposition of the products by Buyer or its employees, customers or agents.
    All confidential and proprietary information of Seller, including its trade secrets, furnished or acquired by Buyer in connection with this Agreement, including but not limited to any formula, design, manufacturing methods or processes, or treatment and composition of materials, shall be kept confidential by Buyer, and not disclosed to third parties without Seller’s express written permission. Buyer shall not use any such data, in whole or in part, or the products, to copy, replicate or manufacture (or enable manufacture by itself or any third party) the products.
    To secure prompt payment of the purchase price for the products, Buyer hereby grants to Seller a purchase money security interest in the products purchased from Seller and all proceeds thereof (the “Collateral”). Buyer agrees to execute and deliver to Seller UCC financing statements, together with any and all documents, and shall take such other action, as may be required to perfect Seller’s security interest in the Collateral.
    If, at any time, Seller incurs legal expenses or other costs or expenses in connection with (i) any litigation, contest, suit, dispute, proceeding or action in any way relating to collection of the purchase price or the Collateral; (ii) any attempt by Seller to enforce any rights of Seller against Buyer or any other person which may be obligated to Seller hereunder; or (iii) any attempt to inspect, verify, protect, preserve, restore, collect, sell, liquidate or dispose of the Collateral, then, in any such event, the expenses and costs (including attorneys fees) relating to any of the foregoing events or actions shall be payable by Buyer upon demand by Seller and shall be considered additional obligations hereunder secured by the Collateral.
    After shipments have been scheduled, Buyer may not cancel or postpone a scheduled shipment unless Buyer submits a request in writing, and Seller consents by issuing a new formal acknowledgment. Any request by Buyer to cancel or to reschedule a shipment of any product may be rejected as untimely or, at Seller’s option, may be accepted upon payment of the appropriate cancellation charge or rescheduling charge. If Buyer refuses to accept deliveries of the products sold, or is otherwise in default under or repudiates all or any part of the contract, or advises Seller that it will default in the performance of any of its obligations, or if any action is started by or against Buyer seeking the appointment of a trustee or receiver or the entry of an order for debtor’s relief for Buyer, then, in addition to any and all remedies allowed by law, Seller, without notice, may pursue any of the following remedies: (i) bill and declare due and payable all delivered products under the Agreement, (ii) cease performance of its obligations and defer shipment under the Agreement until such default, breach or repudiation is removed, (iii) cancel any undelivered portions of the products, or (iv) recover products in transit, retrieve delivered products, or repossess products stored by Seller for Buyer’s account. The foregoing remedies and all rights granted to Seller in this Agreement and by law or equity are cumulative, provided Seller shall be entitled to only a single full recovery.
    Buyer and Seller acknowledge and agree that the products sold hereunder are manufactured pursuant to U.S. Food and Drug Administration regulations and guidelines, and when and as sold to Buyer are not subject to regulation by the U.S. Department of Agriculture (“U.S.D.A.”). Buyer is solely responsible for compliance with U.S.D.A. regulations and all other governmental or industry regulations applicable to Buyer’s use of the products.
    This Agreement does not constitute an agency relationship between the parties and neither party shall hold itself out to be the legal representative, agent, or employee of the other party for any purpose whatsoever. No change or modifications shall be allowed to the Agreement without the expressed written permission of the Seller. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto, but it shall not be assigned in whole or part by either party without written consent of the other; provided, however, that Seller may assign the Agreement in connection with a merger, a sale of all or substantially all of its assets or a reorganization without the consent of Buyer. Waiver by Seller of any provision of the Agreement or of a breach by Buyer of any provision of the Agreement shall not be deemed a waiver of future compliance with the Agreement and such provision, as well as all other provisions of this Agreement, shall remain in full force and effect. If any provision of this Agreement shall be held invalid or unenforceable, such provision shall be deemed deleted herefrom and replaced by a valid and enforceable provision which, so far as possible, achieves the same economic and other benefits for the parties as the severed provision was intended to achieve, and the remaining provisions of this Agreement shall continue in full force and effect. This Agreement shall be governed by the laws of the State of South Carolina. The exclusive jurisdiction for all disputes arising out of or relating to this Agreement shall be the state and federal courts located in Columbia, South Carolina.