1. INTRODUCTION

1.1

The Platform provides an intermediary service between Sellers and Buyers. A Seller may offer Products for supply, and a Buyer may bid to purchase Products, on the Platform.

2. DEFINED TERMS AND INTERPRETATION

2.1

In these Terms of Use:

Access Agreement means the binding agreement entered into by and between the Participant and the Platform Operator whereby the Participant agrees to these Terms of Use and other supplemental agreements and Policies in consideration for access to the Marketplace and the Services.

Account means the user profile created for, or by, the Participant via the Website for the purposes of using the Marketplace.

Bid means a Buyer’s indication of an intent to accept an Offer to enter into a Contract to buy Products on the Marketplace.

Brokerage Services means the brokerage services rendered by a Nui Broker on behalf of the Platform Operator.

Buyer means a person who buys or contracts to buy Products on the Marketplace.

Contract means the binding contract that is deemed to have been formed between a Buyer and a Seller for the sale and purchase of the relevant Products when:

(a) an Offer has been submitted in response to a Bid; or

(b) a Bid has been submitted in response to an Offer.

Contract Confirmation means an e-mail notification to the Parties evidencing a Contract made on the Marketplace to buy and sell Products.

INCO Terms means the most recently published Incoterms rules published by the International Chamber of Commerce that determine the responsibilities of buyers and sellers for the delivery of goods under sales contracts.

Marketplace means the web page or location within the Website that enables Participants to make Bids, Offers and Contracts to buy and sell Products.

Nui Broker means a broker working for, or affiliated with, the Platform Operator who renders the Brokerage Services.

Offer means a Seller’s indication of an intent to enter into a Contract to sell Products on the Marketplace.

Participants means the Buyers and Sellers.

Platform means the trading platform for the Products which is operated by the Platform Operator and includes the Website, the Marketplace, the Services and any network, operating system, software, data or material that underlies or is connected to the foregoing.

Platform Operator means:

(a) in respect of persons accessing and using the Platform in the United States, Nui USA Limited (New Zealand company number: 5495382); and

(b) in respect of persons accessing and using the Platform outside of the United States, Nui Markets NZ Limited (New Zealand company number: 5495421).

Policy means the policy or policies posted or otherwise communicated to Participants by the Platform Operator that apply to the activities taking place on the Marketplace.

Privacy Policy means the Platform Operator’s privacy policy as set out on the Website, as amended from time to time.

Products means products which the Seller makes available for sale through the Marketplace.

Terms of Use means these Terms of Use, as amended from time to time in accordance with clause 14.

Seller means a person who sells or contracts to sell Products on the Marketplace.

Services means the intermediary commodity trading services which the Platform Operator provides through the Platform.

Website means the website located at www.nuimarkets.com

1.2

In these Terms of Use:

(a) unless stated otherwise, references to monetary amounts are to United States dollars (USD);

(b) headings are inserted for ease of reference only, and do not affect the interpretation of these Terms of Use;

(c) references to the singular include the plural and vice versa;

(d) references to a “person” include an individual, company, corporation, partnership, firm, joint venture, association, trust, unincorporated body of persons, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal identity;

(e) “include” or any form of that word is to be construed as if followed by “without limitation”;

(f) reference to the “liability” of a person include references to its liability under any cause of action, whether in contract, tort, or equity or under any enactment; and

(g) references to any document (however described) are references to that document as modified, novated, supplemented, varied or replaced from time to time and in any form, whether on paper or in an electronic form.

2. ACCOUNTS AND ACCESSING THE MARKETPLACE

2.1

Potential Participants may gain access to the Marketplace and the Services by registering on the Website and complying with the Platform Operator’s application process.

2.2

Before the Marketplace can be used, a potential Participant will be required to set up an “Account” by providing certain login information. Once the Participant has an Account, and has been approved for trading by the Platform Operator, the Participant will be able to access the Marketplace to buy and sell Products.

2.3

Each Participant must keep its login information for its Account secure to avoid use by other persons and not permit any other person to access or use the Marketplace using such login information. If the Marketplace is used by someone other than the Participant using the Participant’s login information, or if the Participant knows or suspects another person has obtained the Participant’s login information, the Participant must immediately notify the Platform Operator at support@nuimarkets.com.

2.4

If a Participant’s login information is used by another person to place a Bid or Offer, or to enter into a Contract, the Participant will be liable to complete that Bid, Offer or Contract and pay any corresponding fees to the Platform Operator.

2.5

The Platform Operator may require a Participant to establish creditworthiness prior to accessing the Marketplace. Each Participant agrees to provide all information required by the Platform Operator to determine its creditworthiness, and any applicable credit limit, and each Participant consents to a credit check by the Platform Operator or an agent on behalf of the Platform Operator. Each Participant authorises the Platform Operator or its agent to take whatever measures are required at its discretion to confirm the correctness of a Participant’s supplied information including periodically requesting and obtaining credit and financial information from such sources as may be relevant to access Participant’s creditworthiness. The Platform Operator reserves all rights to restrict the Participant’s access to the Marketplace at any time if, in the Platform Operator’s judgement, it is not satisfied in all respects with the Participant’s creditworthiness.

3. CONTRACT PROCESS

3.1

Participants can access the Marketplace for the purposes of entering Bids or Offers by logging into their Account using their confidential login information. Bids and Offers are anonymous. If a Bid and Offer is matched, an irrevocable Contract is instantaneously entered into between the person that submitted the relevant Bid and the person that submitted the relevant Offer, and both parties are informed of the Contract via a Contract Confirmation. The Contract Confirmation contains relevant information about the Contract, including the names of each party. The Platform Operator is in no way whatsoever a party to the Contract.

3.2

All Participants agree that the “Participant Contract Terms and Conditions” specified in the Schedule to these Terms of Use will apply to, and are deemed incorporated into, every Contract between a Buyer and a Seller unless expressly superseded, in whole or in part, by alternative written agreement(s) between the Buyer and the Seller.

3.3

The default setting for the Marketplace is that all Participants may enter Contracts with all other Participants. When a new Participant sets up their Account, the other Participants will be notified and will have the ability to elect not to enter into Contracts with that new Participant (thereafter, disabling the ability of that Participant to enter into Contracts with that new Participant). When a Participant is de-selected by another Participant, there is an opportunity for the de-selected Participant to send a “Connection Request” to the Participant that elected not to enter into Contracts with it.

4. FEES AND PAYMENT

4.1

Participants agree to pay all subscription fees in consideration for the Platform Operator granting the Participant access to the Marketplace and the Services. This fee will be separately advised to the Participant and must be paid prior to the Participant making any Bids or Offers on the Marketplace.

4.2

The Platform Operator may charge both the Seller and the Buyer to a Contract a brokerage fee based on the volume of the Product bought and sold under the Contract. Brokerage fees payable by Buyers and Sellers will be separately communicated to Participants either directly via email or through the Website.

4.3

Participants will pay all fees within 14 days of the date of the Platform Operator’s invoice. If the invoice is not paid within 14 days, the Platform Operator reserves the right to suspend access to the Participant’s Account and/or to restrict or terminate the Participant’s ability to access the Marketplace, and to pursue other remedies for default.

4.4

Any reference to an amount payable or consideration to be provided in connection with the Marketplace and/or the Services that is governed by or otherwise connected with these Term of Use is a reference to that amount or consideration excluding all applicable sales taxes.

4.5

Without prejudice to any other right, power or remedy of the Platform Operator under these Terms of Use, at law or otherwise, if from any cause whatever, except default by the Platform Operator, any amount payable by a Participant is not paid by the due date for payment, the Participant will pay default interest at the rate of 10% per annum on demand to the Platform Operator. Such default interest will be payable before any judgment, be calculated daily (on the basis of a 365 day year) on the amount unpaid from and until payment (including payment of the default interest) is made and compound on a monthly basis.

5. BROKERAGE SERVICES

5.1

The Platform Operator offers the Brokerage Services through the Website and the Marketplace to Participants.

5.2

A Nui Broker will be entitled to contact Participants (through telephone, email, direct messaging through the Marketplace or Website, mobile app and/or other customary means of communication) to invite Participants to make Offers and/or place Bids, as the case may be.

5.3

A Participant may request a Nui Broker to place, delete and/or edit Offers and/or Bids on behalf, and at the risk and expense, of such Participant. A Nui Broker will, at its sole discretion, be entitled to deny any such request from a Participant.

5.4

Offers or Bids placed through a Nui Broker will be placed on the Marketplace in order of receipt and will remain valid until the first of:

(a) a Contract occurring (as evidenced by a Contract Confirmation being sent to Participants); or

(b) the Offer or Bid being withdrawn by, or on behalf of, the Participant who has placed such Offer or Bid.

5.5

A Participant will not be liable for any additional brokerage fees in connection with Brokerage Services, other than the fees referred to in clause 5.2.

5.6

Notwithstanding that Brokerage Services may have been provided, neither the Platform Operator nor any Nui Broker is a party to any Contract (or any other arrangements made between Participants) or subject to any post contractual information obligations.

5.7

Neither the Platform Operator nor any Nui Broker makes a warranty or representation nor accepts duty of care as to the accuracy of any information, forecast, estimate, projection, statement of intent, statement of opinion or forward-looking statement rendered in connection with the Brokerage Services and the Participant will not be entitled to rely on the same.

5.8

Neither the Platform Operator nor any Nui Broker will hold a position in the Products tradeable through the Marketplace.

6. TERM AND TERMINATION

6.1

The Access Agreement between the Platform Operator and the Participant will specify the period within which the Participant may access the Marketplace and the Services.

6.2

If the Access Agreement expires, or is terminated early, the Platform Operator may immediately terminate the Participant’s access to the Marketplace and the Services.

6.3

A Participant may stop using the Marketplace and/or Services at any time. If a Participant wishes to terminate or close its Account, the Participant can do so by emailing the Platform Operator at support@nuimarkets.com. Participants remain liable to the Platform Operator for all fees incurred prior to when the Participant stops using the Marketplace and/or the Services.

6.4

The Platform Operator reserves the right, at its discretion, to immediately terminate, change or suspend a Participant’s access to the Marketplace and/or the Services, if the Participant:

(a) breaches these Terms of Use (including failure to pay an amount owed to the Platform Operator);

(b) is, becomes, or is deemed to be, insolvent;

(c) makes an assignment for the benefit of, or enters into or makes any arrangement or composition with, that party’s creditors;

(d) goes into receivership or has a receiver, administrator, trustee or statutory manager or similar official appointed in respect of the Participant or the Participant’s property; or

(e) provides false or inaccurate information to the Platform Operator, by notifying the Participant by email.

6.5

If a party exercises its rights under clause 7.3 or 7.4 , such exercise will be without prejudice to either party’s rights or remedies in respect of a breach by the other party prior to such exercise.

7. RELATIONSHIPS BETWEEN PARTICIPANTS AND PLATFORM OPERATOR

7.1

The Platform Operator does not engage in, advise, or otherwise recommend any transaction between the Participants and such transactions are made at the sole discretion of the Participants. Contracts made between the Participants are solely regarding the purchase and sale of Products for physical delivery and are made directly and solely between those Participants. The Platform Operator is not responsible for examining or evaluating, and does not warrant, the offerings of any Participant or such Participant’s ability to perform its obligations under any Contract. All risks associated with, or arising from, any Contract occurring on the Platform are solely borne by the parties to the Contract including the performance risk, price risk, credit risk or other risk that may adversely affect the Contract or the parties thereto.

7.2

There are no fiduciary duties owed by or between the Participants and the Platform Operator and the Participants expressly agree that the Platform Operator is not and will not be any advisor, agent, broker or fiduciary to the Participant in respect of any Contract. The Platform Operator does not assume any responsibility or liability for the actions or inactions of the Participants, or the representations or misrepresentations of any Participant.

8. TRADING HOURS AND OUTAGES

8.1

The hours of operation of the Platform will be determined by the Platform Operator from time to time and notified on the Website. The Platform Operator will provide notice on the Website at least seven (7) days prior to any change in hours of operation.

8.2

Access to the Platform will be unavailable from time to time during its hours of operation due to scheduled and/or unscheduled maintenance or outages. During periods when access is unavailable, no trading will be able to be carried out on the Marketplace.

8.3

The Platform Operator will endeavour to provide such prior notification as is reasonably practicable of any scheduled maintenance or outages, but it will not be liable to any person in respect of any scheduled or unscheduled maintenance or outages occurring.

9. REPRESENTATIONS AND WARRANTIES

9.1

Each Participant represents and warrants as follows:

(a) all information provided by the Participant to the Platform Operator is true and accurate, and the Participant will immediately provide written notice to the Platform Operator if there are any material changes to that information;

(b) the Participant is authorised under its governing documents and in the jurisdictions in which it is organised or regulated to enter the Access Agreement and trade Products on the Marketplace;

(c) the persons the Participant has identified to enter Bids and Offers on behalf of the Participant have proper authority and have sufficient knowledge and experience to understand the nature and risks of the contemplated transactions;

(d) the Participant is not acting as a broker-dealer, futures commission merchant, regulated investment professional or affiliate, associated person or employee thereof, while involved in Bids and Offers on the Marketplace;

(e) it is solely responsible for the Bids and Offers it enters on the Platform and the Platform Operator is not liable for any loss or damage incurred by the Participant caused by any third-party using the Participant’s login information; and

(f) it is responsible for the confidentiality and use of, and will reasonably safeguard and will not permit others to use, the Participant’s Account login information.

10. DISCLAIMER AND LIMITATION OF LIABILITY

10.1

There is no warranty of any kind, express or implied, regarding information provided within the Platform, including warranty of merchantability, warranty of fitness for a particular use or warranty of non-infringement. The Participant accepts the Marketplace is provided by the Platform Operator on an “as is” basis.

10.2

In no event will the Platform Operator, or any affiliate of the Platform Operator, be liable for:

(a) consequential, incidental, special or indirect damages; or

(b) any delays or interruptions of service or transmissions, or failures of performance of the Platform regardless of cause, including those caused by hardware or software malfunction, the Platform Operator’s intentional acts or the Platform Operator’s failure to act to prevent service disruption or system failure, and without limiting the foregoing, unless otherwise required by applicable law, in no event will the Platform Operator’s aggregate liability with respect to any claim arising from or related to the Participant’s use of the Platform exceed the fees paid by the Participant to the Platform Operator in the preceding 12 month period.

10.3

Each Participant agrees to indemnify, hold harmless and defend the Platform Operator, its affiliates, and their respective officers, directors, employees, agents, and representatives from any and all liabilities, losses, costs, judgments, penalties, claims, actions, damages, or expenses (collectively, “Losses”) arising from, or relating to, any action taken in reliance on any representation, information or instruction received from Participant, the Participant’s breach of these Terms of Use, any action taken by the Platform Operator to enforce its rights under these Terms of Use, any inquiry, information request, or other action by a third party related to the Participant’s Account, including to Participant’s assets, liabilities, transactions, instructions, actions, or inactions, and the Participant’s violation or infringement of any intellectual property right held by the Platform Operator or its affiliates except to the extent that such Losses directly result from the Platform Operator’s gross negligence, fraud or wilful misconduct.

11. PARTICIPANT CONDUCT

11.1

No Participant will:

(a) engage in any activity in respect of, or otherwise in connection with, the Marketplace which may give a false or misleading impression of supply, demand or the price applicable for Products;

(b) collude in any way which is intended to, or may, have the effect of manipulating the outcome of a Bid or Offer on the Marketplace;

(c) engage in any act or course of conduct which is likely to harm the integrity or fairness of the Marketplace;

(d) commit any act, or engage in any course of conduct, which will or is likely to bring any Participant, the Platform and/or the Platform Operator into disrepute; or

(e) breach these Terms of Use or cause or contribute to a breach of these Terms of Use by any other Participant.

11.2

Each Participant acknowledges that is responsible for ensuring that at all times:

(a) the information in its Bids and Offers is complete and correct in all respects; and

(b) it has adequate systems and controls in place to prevent the submission of incorrect or erroneous Bids or Offers.

12. INTELLECTUAL PROPERTY

12.1

In these Terms of Use, “Intellectual Property” means all rights to, and interests in, any copyright, trade mark, know-how, domain name, software and any other proprietary right or form of intellectual property.

12.2

All Intellectual Property in the Platform is owned by the Platform Operator or its licensors (as applicable) and none of the contents of the Platform may be used, reproduced, copied or distributed, in any way whatsoever, other than to use the Platform for the Participant’s personal use.

12.3

A Participant must not copy, reverse engineer, decompile, disassemble, attempt to derive the source code of, modify, create derivative works of re-post to other applications or websites, change, or otherwise distribute, license, sub-licence or transfer in any form any aspect of the Platform.

12.4

Each Participant agrees and acknowledges that its trademark and/or logo can be used by the Platform Operator on the Website for marketing purposes.

13. AMENDMENTS

13.1

The Platform Operator may amend these Terms of Use, at its absolute discretion, at any time by notice on the Website. Any such amendments will apply from the date stated on the Website. Participants should check the notices section of the Website regularly. Any such modifications will apply from the date stated in the notice on the Website.

14. COMPLAINTS BY PARTICIPANTS

14.1

If any Participant has a complaint about the conduct of any other Participant, or a suspicion that another Participant has committed, or is about to commit, a breach of these Terms of Use, that complaint must be made in writing and sent by email to support@nuimarkets.com.

15. GENERAL

15.1

No waiver of any breach, or failure to enforce any provision, of these Terms of Use at any time by the Platform Operator will in any way affect, limit or waive the Platform Operator’s right thereafter to enforce and compel strict compliance with the provisions of these Terms of Use.

15.2

No Participant will, directly or indirectly, assign, transfer or otherwise dispose of any rights or interests of that Participant in, or obligations or liabilities under, these Terms of Use except with the prior written consent of the Platform Operator, which consent may be given or withheld in the Platform Operator’s complete discretion.

15.3

These Terms of Use and the Access Agreement comprise the entire agreement between the Platform Operator and each Participant in respect of the use of the Platform.

15.4

If any part of these Terms of Use is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable such determination will not impair the enforceability of the remaining parts of the Terms of Use, which will remain in full force, and such provision will be deemed to be modified to the extent necessary to render it legal, valid and enforceable.

15.5

These Terms of Use are governed by New Zealand law. Participants submit to the non- exclusive jurisdiction of the New Zealand courts in respect of all matters arising under or in connection with these Terms of Use.

SCHEDULE

PARTICIPANT CONTRACT TERMS AND CONDITIONS

1. CONTRACT AND CONTRACT CONFIRMATION

1.1

Within the Marketplace, a Contract for the purchase and sale of Products is instantaneously entered into between the Buyer and Seller when Bid and Offer terms are matched. Both the Buyer and the Seller are informed of the Contract via a “Contract Confirmation” email. The Contract Confirmation contains relevant information about the Contract, including the names of the Buyer and the Seller and the basic terms. In any case where the Contract Confirmation is erroneous, either the Buyer or the Seller may file a written objection to the other party within five days from the date of Contract Confirmation. If no such written objection is provided, the email will serve as evidence of the terms of the Contract.

2. ADDITIONAL CONTRACT TERMS

2.1

In addition to the Contract Confirmation, the Participant Contract Terms and Conditions in this Schedule will be made part of the Contract and will set forth the understanding between the Buyer and the Seller except where the Buyer and the Seller have expressly agreed in a separate written agreement to different or additional terms, in which case such different or additional terms of that written agreement will apply.

3. SELLER’S REPRESENTATIONS AND WARRANTIES

3.1

The Seller represents, warrants and covenants as follows:

(a) The Products (and the manufacture, packaging, storage, handling, transportation and delivery thereof) supplied:

(i) will comply with all applicable laws, rules, regulations, codes and ordinances of the country(ies) of manufacture and of delivery, and conform to the specifications, drawings, samples or other descriptions contained in the Offer or provided or approved by the Buyer;

(ii) will conform to the specifications, drawings, samples or other descriptions contained in the Contract Confirmation or approved by Buyer;

(iii) will be merchantable, of satisfactory quality, of good material and workmanship and free from defects in workmanship, material and design;

(iv) will be fit and sufficient for ordinary use and/or the particular purpose for which the Products are purchased and/or any specific requirements disclosed to the Seller and operate as intended;

(v) in the absence of contrary specifications, will be new and of the highest grade and quality; and

(vi) will be free and clear of all liens, security interests or other encumbrances.

(b) The packaging of the Products will be provided with the brands and wording legally required in the country of origin.

(c) The packaging will feature the brands and wording that the Buyer stipulates in writing on inception of the Contract subject to the Buyer meeting all the costs associated with any such stipulation.

(d) Neither the Seller nor any other person that owns or controls the Seller is a designated target of economic trade sanctions promulgated by the US, EU, UN, or the country of origin of the Products (Sanction Laws). The Seller undertakes that:

(i) the Seller and its agents and representatives will fully comply with all applicable Sanction Laws in their performance of the Contract; and

(ii) the Products will not directly or indirectly originate from, be provided by or be transported on a vessel, or with any carrier, owned, controlled, flagged or chartered by any country, person that would cause the Buyer, or any affiliate of the Buyer, to be in contravention of applicable Sanction Laws, and the Seller agrees to co-operate with the Buyer’s reasonable requests for information or documentation to verify compliance with this paragraph 3.1(d) of this Schedule.

16. BUYER’S INSTRUCTIONS

16.1

The Buyer shall be obligated to issue instructions for delivery (including, but not limited to, a place for delivery) no later than six weeks prior to:

(a) the despatch date (or estimated time for departure for exports) specified in the Contract Confirmation; or

(b) if a despatch date range is specified in the Contract Confirmation, the last possible despatch date in that range, unless otherwise agreed by the Buyer and the Seller.

16.2

If the Buyer fails to issue instructions within the period stated above, the Seller shall be entitled to invoice the Buyer for the Products and demand payment as if the same had been supplied by the Seller, provided that said Products remain available for the Buyer at the Buyer’s expense and risk. In that event, the Seller shall also be entitled to cancel the Contract and recover damages for breach of the Contract.

16.3

All reasonable costs caused by, or resulting from, the drafting and delivery of the required documents in connection with the delivery of the Products to the Buyer shall be borne by Buyer, unless otherwise agreed.

17. PRICE AND DELIVERY

17.1

The transport and delivery terms employed in quotations, contracts of sale or confirmations of purchase will be interpreted in accordance with the description provided in the INCO Terms applicable at the time of the Contract, in so far as not otherwise provided in said documents. Unless otherwise agreed in writing by the Buyer and the Seller, delivery of all the Products the subject of the Contract will be made at the same time. If delivery in instalments is agreed upon, the called or delivered quantity will be considered to constitute a separate Contract in respect of the quality and other properties of the Products delivered as well as payment.

17.2

The Buyer may, prior to delivery, have an attested sampler take samples in triplicate in the customary manner. If no samples are taken at the time of delivery, sampling may take place later. The Seller may stipulate that any sampling undertaken by the Buyer be monitored. Assessment and analysis can then only provide an indication of the quality at the time and site of the delivery. In the event of any disputes about quality and/or composition, one of the samples will be subjected to an analysis by an independent and appropriately accredited laboratory selected by the Buyer as soon as possible and in any event within 14 days. The findings of the analysis will be binding, without prejudice to each of the Buyer’s and the Seller’s right to demand a reappraisal within 14 days of publication of the findings, which reappraisal will consist of an analysis of a sample other than the one previously taken, conducted by an independent appropriately accredited laboratory (that may be the same laboratory as hereinbefore referred to) agreed by the Buyer and the Seller. The findings of the reappraisal will be binding upon both the Buyer and the Seller. The associated costs will be borne by the party ruled against as evidenced by the final findings of the analyses referred to.

17.3

The Buyer will have a reasonable period of time after delivery or performance within which to inspect and accept the Products. Rightfully rejected Products may be returned to the Seller or otherwise disposed of at the Seller’s cost and expense. The Buyer will make reasonable efforts to mitigate the Seller’s loses.

17.4

The price and delivery terms are as agreed in the Contract Confirmation. Unless otherwise agreed in writing, the price includes:

(a) all costs to comply with the Participant Contract Terms and Conditions

(b) any and all taxes, including sales, use, excise, value added and other taxes; and

(c) fees, duties, or other governmental impositions on the sale of the Products, and if the Buyer, or the Buyer’s customer, is required to pay any taxes or other impositions, the Seller will promptly reimburse the Buyer.

17.5

The Seller will invoice the Buyer for the amounts due. Except as otherwise agreed in writing, the Buyer will pay the Seller all amounts due as agreed in the Contract Confirmation. Payments may be withheld by the Buyer on account of defective Products not remedied.

17.6

Any and all Products delivered by the Seller to the Buyer will remain the exclusive property of the Seller until all the Seller’s receivables relating to the Products delivered or to be delivered have been fully settled and until any receivables due to non- fulfilment of such Contract (including expenses and interest) have been fully settled. The Products that are subject to a retention of title for the Seller will in no event be sold.

17.7

If either the Buyer or the Seller should default or continue to default on fulfilling any of their obligations towards the other with regard to the term of delivery or credit term, or in the event of their moratorium, bankruptcy, death or liquidation, the non- defaulting party will be entitled to cancel the Contract in whole or in part without any notice of default or intervention of the court by means of written notice being required, without prejudice to the right to claim damages.

17.8

If, upon delivery, an item delivered does not meet the standards set out in the Contract because it displays a defect in quality and/or composition, any complaints about it will only be taken into consideration if submitted to the Seller in writing within six weeks of delivery.

17.9

Except as otherwise set forth in the delivery terms on the face of the Contract Confirmation, or if otherwise agreed to in writing between the Buyer and the Seller, the Seller will retain the risk of loss and/or damage to the Products until the Products are physically delivered to the Buyer at the delivery point agreed by the parties.

18. INDEMNIFICATION

18.1

To the fullest extent permitted by law, each of the Buyer and the Seller agrees to indemnify and hold harmless the other party, its affiliates and their directors, officers, employees, agents, and representatives from and against any and all liability, loss, damage, fine, cost or expense (including reasonable legal fees) to the extent arising out of or resulting from:

(a) such party’s delivery of non-conforming Product;

(b) such party’s alleged or actual, direct or contributory infringement or misappropriation of any patent, copyright, trade secret or other proprietary right;

(c) such party’s breach of any term or condition contained in the Contract; and/or

(d) such Party’s negligent acts or omissions, or wilful misconduct.

18.2

In the event of the Buyer’s or the Seller’s failure to perform any of its obligations hereunder, the non-defaulting party may, at its option, recover from the defaulting party any losses including reasonable legal fees, and any other actual damages, and may exercise all rights and remedies as may be available.

19. FORCE MAJEURE

19.1

The Buyer and/or the Seller may be excused from a failure to perform or a delay in performance, in whole or in part, in the event of, and to the extent that, acts of god, disease, war, riot, fire, explosion, accident, flood, sabotage, compliance with governmental laws or regulations, change of governmental law or regulation, orders or action, national defence requirements, or any other event beyond the reasonable control of such party which prevents the manufacture, shipment, acceptance or use of any Products hereunder (each a “Force Majeure” event). However, this paragraph is not intended to buffer a party against the normal risks inherent in commercial contracts, including strikes or personnel disputes within the party claiming Force Majeure. If possible under the circumstances, the party claiming excuse from performance must take reasonable efforts to remove the cause of its inability to perform or its delay in performance. The party claiming excuse from performance must give prompt written notice to the other party of the Force Majeure event, specifying its nature and anticipated duration.

19.2

Notwithstanding, if as a direct result of a Force Majeure event, either the Buyer or the Seller fails to carry out or observe any of the terms and conditions of the Contract, such failure or omissions will not be deemed a breach, and the affected party’s obligations may be suspended insofar as the parties agree that performance of such obligation is impracticable. Further, the party claiming excuse from performance will be responsible for insuring against any damage or loss incurred due to delay. Nothing in this paragraph 6 of this Schedule will alleviate the party claiming excuse from performance for loss or damage to any Products in its possession. If the Seller’s or the Buyer’s performance is excused or delayed for more than 30 days due to a Force Majeure event, the Buyer may, at Buyer’s option, terminate the Contract by giving written notice, which termination will become effective upon receipt of such notice by the Seller. If the Buyer terminates the Contract, the Buyer’s sole liability will be to pay any balance due for conforming Products delivered by the Seller before receipt of Buyer’s termination notice. If delivery in instalments has been agreed in writing, these provisions will apply to each individual instalment.

20. GENERAL

20.1

Capitalised terms used in this Schedule that are not defined will have the meaning given to them in the Terms of Use.

20.2

The Buyer and the Seller will keep confidential the terms and conditions of the Contract.

20.3

The following international conventions will not apply to the Contract:

(a) Uniform Law on International Sale of Goods and Uniform Law on Formation of Contracts for International Sale of Goods, both concluded at the Hague on 1 July 1964;

(b) United Nations Convention on Contracts for International Sale of Goods of 1980; and

(c) United Nations Convention on Limitations Period in the International Sale of Goods, concluded in New York on 14 June, 1974, and Protocol Amending the Convention on Limitations Period in the International Sale of Goods, concluded in Vienna on 11 April, 1980.

20.4

A party’s failure or delay in exercising any right or remedy will not operate as a waiver of that right or remedy. Any waiver of a right or remedy must be in writing.

20.5

Neither the Buyer nor the Seller may assign or subcontract its rights and obligations under the Contract without the prior written consent of the other party.

20.6

If any provision of the Contract is held by any court to be invalid, illegal or unenforceable, either in whole or in part, that holding will not affect the validity, legality or enforceability of the remaining provisions, or any part thereof, of the Contract, all of which will remain in full force and effect.

20.7

Any and all Contracts entered into by and between a Buyer and a Seller will be governed by the law of the jurisdiction of the Buyer’s address as shown on the Confirmation Contract. Any dispute arising from the Contract will be resolved in the courts in the jurisdiction of the Buyer.