ASPIRE FINISHED GOODS TERMS AND CONDITIONS

ASPIRE PHARMACEUTICALS INC.’s (“ASPIRE”) ACCEPTANCE OF THE ORDER PLACED BY THE CUSTOMER IS EXPRESSLY LIMITED TO AND MADE CONTINGENT UPON THE ACCEPTANCE BY THE CUSTOMER TO THE CONDITIONS SET FORTH IN THESE GENERAL SALES CONDITIONS (THE “CONDITIONS”). CUSTOMER WILL BE DEEMED TO HAVE AGREED TO THE CONDITIONS SET FORTH HEREIN UNLESS CUSTOMER OBJECTS IN WRITING TO THE CONDITIONS PRIOR TO THE SHIPMENT OF THE PRODUCTS. ASPIRE OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS. THESE CONDITIONS CONTROL OVER ANY CONFLICTING OR ADDITIONAL TERMS AND CONDITIONS INCLUDED IN ANY PURCHASE ORDER OR OTHER CORRESPONDENCE USED BY CUSTOMER IN ORDERING PRODUCTS. IN THE EVENT, HOWEVER, OF A CONFLICT BETWEEN THESE CONDITIONS AND ANY SPECIAL CONDITIONS OR TERMS SET OUT IN A WRITTEN SUPPLY AGREEMENT OR PURCHASE AGREEMENT EXECUTED BY ASPIRE AND CUSTOMER, THEN SUCH SPECIAL CONDITIONS OR TERMS WILL PREVAIL

1. Customer Responsibilities
(a) Procurement. If applicable, Customer will procure Customer supplied raw materials and ingredients (“Customer Supplied Materials”) as agreed to by the parties.

(b) Product and Raw Materials. Customer is responsible for (i) defining the specifications of the Product in Formula Agreement; (ii) the formulation, use, promotion, packaging, labeling, distribution, marketing, sale and disposal of Product, including compliance with all present and future laws, regulations and government orders (“Laws”) related to the same; (iii) communicating with governmental authorities concerning Product; (iv) storing and handling Product in appropriate conditions following its delivery; (v) ensuring all Customer Supplied Materials provided to ASPIRE conform to the identity and potency given to them when delivered and not be “adulterated” or “misbranded” within the meaning of the Federal Food, Drug and Cosmetic Act, as amended; and (vi) determining the safety and suitability of all raw materials in the Product (collectively, “Raw Materials”) and the Product for human consumption. Customer covenants and agrees that it will obtain and maintain regulatory or other government approvals necessary to market, sell and dispose of the Product. ASPIRE may offer suggestions with respect to the formulation, but in doing so ASPIRE is not accepting responsibility for defining the specifications of Product or for any of the responsibilities of Customer set forth herein.

(c) EHS Data. Customer will provide to ASPIRE, prior to ASPIRE’s commencement of any services hereunder and from time to time as needed to update or correct the same, environmental, health and safety information related to any Customer Supplied Materials.

(d) Purchase Order Modification/Cancellation. Customer shall not be permitted to modify or cancel an accepted purchase order without the prior written agreement of ASPIRE.

2. ASPIRE Responsibilities (a) Procurement, Testing and Release. ASPIRE will perform the following activities in connection with the Product: (i) procurement of non-Customer Supplied Materials (“ASPIRE Purchased Materials”) as agreed to by the parties; (ii) analysis and release for use in manufacturing the Product, according to the Formula Agreement, of all Raw Materials; and (iii) analysis and release of the Product according to specifications set forth in the Formula Agreement.

(b) Manufacturing. ASPIRE is responsible for (i) manufacturing the Product in accordance with the specifications for Product and in compliance with all Laws related to the same; and (ii) storing and handling Product in appropriate conditions before its delivery to Customer. ASPIRE will obtain and maintain regulatory approvals necessary for ASPIRE to manufacture the Product.

(c) Quantity Variance. Owing to the specific character of the manufacturing process of Products, ASPIRE reserves the right to deliver a quantity of Product ten percent (10%) higher or lower than the quantity ordered. Materials supplied by Customer will not be reimbursed unless specifically agreed upon in a separate Commercial Supply Agreement based on an industry accepted manufacturing yield for each product not to exceed 90% of the theoretical yield for any such product.

3. Payment; Credit. Payment terms are as agreed to between the parties. ASPIRE has the right to cancel any purchase orders it has accepted, or to delay the shipment of the Product, if Customer fails to meet payment schedules or other credit or financial requirements established by ASPIRE or if ASPIRE reasonably believes that Customer will be unable to satisfy Customer’s financial obligations hereunder.  Customer agrees to make available to ASPIRE such statements of Customer’s financial conditions as ASPIRE may from time to time request. ASPIRE retains the right at all times to vary, change or limit the amount or duration of credit it allows to Customer. Each shipment of Product to Customer constitutes an independent transaction, and Customer agrees to pay for the same without setoff or deduction.

4. Raw Materials.
(a) ASPIRE Purchased Materials. Customer will promptly reimburse ASPIRE, upon request, for ASPIRE Purchased Materials that are not used for Product orders within six months of their acquisition by ASPIRE, in which case Customer has the right to promptly pick up from ASPIRE’s premises any unused raw materials or to instruct ASPIRE to destroy such unused materials at Customer’s cost.

(b) Customer Supplied Materials. ASPIRE will not test the Customer Supplied Materials unless agreed to by the parties in writing. Customer shall comply with all applicable laws related to the manufacture of any Customer Supplied Materials and the delivery of such Customer Supplied Materials to ASPIRE. Customer Supplied Materials that are rejected by ASPIRE shall not count against the loss allowance. ASPIRE shall not be liable for any failure to deliver or any delivery delay of Product due to the failure of Customer to deliver or cause delivery of Customer Supplied Materials in the time specified herein. In the event of any loss or damage to Customer Supplied Raw Materials in excess of the loss allowance while in the possession of ASPIRE, ASPIRE’s liability to Customer shall be limited to reimbursement of customer for the cost of the Customer Supplied Material at the value equal to Customer’s actual documented cost, not to exceed the value of the purchase order creating such liability.

(c) Destruction of Raw Materials.  ASPIRE will follow instructions provided by Customer for the destruction of Raw Materials, consistent with ASPIRE’s environmental, health and safety guidelines. ASPIRE has the right to destroy unused Raw Materials if it does not receive instruction from Customer.  Customer will pay for the costs of destruction.

5. Title; Risk of Loss. Title and risk of loss to any Customer Supplied Materials shall at all times remain with Customer. Title and risk of loss to Product shall pass to Customer, and the sale of Product to Customer shall occur, on the date ASPIRE advises Customer Product is ready for delivery (the “Sale Date”). ASPIRE may invoice Customer for Product on or after the Sale Date, and Customer agrees to pay such invoice in accordance with the terms set forth in the Agreement. While any Customer Supplied Material is in ASPIRE’s possession and until the date of shipment of Product, the risk of loss and damage to Customer Supplied Material and Product is with ASPIRE; and, risk of loss and damage for Customer Supplied Material and for Product is with Customer at all other times.

6. Force Majeure. ASPIRE’s obligation to deliver Product to Customer shall at all times be subject to ASPIRE’s ability to obtain a sufficient supply of Raw Materials meeting quality standards. ASPIRE will not be liable for delays in performance, nor shall it be deemed in breach of its obligations, for any failure or delay due to any causes that are beyond its reasonable control and not due to its acts or omissions, such as acts of God, pandemic, epidemic, flood, volcanic eruption, epidemic, fire, war, terrorism, strike, industrial dispute, equipment or machinery breakdown, unavailable or nonconforming vendor-supplied Raw Materials, embargo, acts of government or other similar causes. In such event, ASPIRE will promptly give notice to Customer of such cause.

7. Customer Representations. (a) Customer represents and warrants to ASPIRE that (i) it has approved and executed a Formula Agreement, (ii) the Formula Agreement contains all of the ingredients, specifications and instructions necessary for ASPIRE to manufacture the Product, (iii) all EHS information provided by Customer to ASPIRE is true, accurate and complete in all material respects; (iv) the Product is safe for human consumption; (v) to its knowledge, neither the Product nor any ingredient listed in the Formula Agreement infringes the intellectual property rights of any third party; and (vi) it has obtained all licenses, permits, approvals, consents and authorizations from relevant government authorities necessary to distribute, market, promote, package, label, store, sell, dispose of and otherwise use the Product.

8. ASPIRE Representations. (a) ASPIRE represents and warrants to Customer that (i) as of the date of its delivery to Customer, the Product has been manufactured in all material respects in accordance with the Formula Agreement and the Certificate of Analysis delivered with the Product is true, accurate and complete in all material respects and (ii) it has obtained all licenses, permits, approvals, consents and authorizations from relevant government authorities to manufacture the Product for Customer. ASPIRE offers no warranty with respect to the accuracy of the Formula Agreement. EXCEPT AS EXPRESSLY STATED IN THIS SECTION, ASPIRE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The warranty in this Section will not apply to any action or inaction, willful, negligent or otherwise on the part of Customer including Raw Materials, other materials or Product which have been subjected to misuse, neglect, accident or abuse, exposed to abnormal operating or environmental conditions or improperly stored, handled or altered.

9. Non-conforming Product. If Customer believes that a Product does not conform to the warranty in Section 9, Customer will promptly advise its complaint in writing to ASPIRE within thirty (30) days of ASPIRE’s delivery of such Product detailing all alleged non-conformities (“Non-Conforming Product”). ASPIRE has the right to examine and test any Product that Customer claims to be a Non-Conforming Product. In the event ASPIRE does not agree with Customer as to whether or not any shipment of Product contains Non-Conforming Product, the parties will designate an independent testing laboratory to determine the same and the findings of the independent testing laboratory shall be binding on ASPIRE and Customer absent manifest error. The party whose position is determined to have been in error shall pay for the expenses of the laboratory; or, if the laboratory cannot place the fault noticed and complained about, then the parties shall share equally the expenses of the laboratory. Should it be determined that Product does not meet the warranty in Section 9, ASPIRE’s sole and complete liability to Customer for the Non-Conforming Product is to, in ASPIRE’s sole discretion, supply replacement Product to Customer without charge as quickly as commercially practicable or refund the purchase price of such Non-Conforming Product. If Customer supplies material to ASPIRE, Customer will supply replacement material to ASPIRE for the replacement Product to Customer. Customer agrees that ASPIRE shall have no liability if the Non-Conforming Product is due to any action or inaction on the part of Customer, any affiliate of Customer or any third party under contract with or subject to the control or direction of Customer or any affiliate of Customer.

10. Waiver of Consequentials. IN NO EVENT SHALL ASPIRE BE LIABLE TO CUSTOMER OR ITS AFFILIATES FOR ANY LOSS OF OPPORTUNITY, LOSS OF PROFITS, LOSS OF ANTICIPATED SALES, OR ANY PUNITIVE, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL LOSSES OR DAMAGES WHETHER OR NOT FORESEEABLE, OR WHETHER OR NOT ASPIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OF ANY KIND HOWEVER CAUSED, WHETHER BASED ON CONTRACT, NEGLIGENCE OR OTHER THEORY OF LAW, ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT (OR THE TERMINATION HEREOF) OR ANY PURCHASE ORDER, AS APPLICABLE.

11. Limitation of Liability. Notwithstanding any other provision in these Conditions or a purchase order, as applicable, the total liability, in the aggregate, of ASPIRE and its affiliates, to Customer and anyone claiming by or through Customer, for any and all claims, losses, costs, damages or fees, including without limitation, attorneys’ fees resulting from or in any way related to these Conditions or a purchase order from any cause or causes shall not exceed the purchase price of the Products with respect to which damages are claimed.

12. Indemnification. ASPIRE shall indemnify, defend and hold Customer, its affiliates and their respective officers, directors, employees and agents (each, a “Customer Indemnified Party”) harmless from and against any and all any and all losses, fines, fees, settlements, payments, obligations, penalties, deficiencies, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) (“Losses”) suffered, incurred or sustained by any Customer Indemnified Party, by reason of any third party claim, action, suit, proceeding or arbitration, including any governmental authority action or investigation (“Claim or Proceeding”) for personal injury, death or property damage to the extent arising out of or resulting from ASPIRE’s: (i) breach of the representation and warranties in these Conditions; or (ii) gross negligence or willful misconduct in connection with these Conditions; provided however, that ASPIRE shall have no obligation of indemnity hereunder with respect to any Losses to the extent caused by the gross negligence or willful misconduct on the part of Customer.
Customer shall indemnify, defend and hold ASPIRE, its affiliates and their respective officers, directors, employees and agents (each, a “ASPIRE Indemnified Party”) harmless from and against any and all liabilities, lawsuits, threats of lawsuits or other governmental action, or Losses suffered, incurred or sustained by any ASPIRE Indemnified Party, by reason of any Claim or Proceeding to the extent arising out of or resulting from Customer’s (i) breach of the representation and warranties in these Conditions; (ii) gross negligence or willful misconduct in connection with these Conditions; (iii) the use, packaging, labeling, distribution, marketing, promotion, sale and disposal of Product or Customer Supplied Material; or (iv) resulting from the inherent risk of the Product or Customer Supplied Material; provided however, that Customer shall have no obligation of indemnity hereunder with respect to any Losses to the extent caused by the gross negligence or willful misconduct on the part of ASPIRE.
Customer shall also defend, indemnify, and hold harmless ASPIRE, its affiliates and their respective officers, directors, employees and agents from and against any and all claims, suits, and/or proceedings (including any assertion of an intellectual property right, regardless of whether the assertion has been or will be adjudicated), as well as all damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs), of whatever nature resulting from, arising out of, or relating to a claim or allegation that the Product, or any part thereof, infringes, misappropriates, or otherwise violates a patent, copyright, trade secret, trademark or other intellectual property right of any third party.

13. Insurance. Customer shall maintain products liability insurance sufficient in amount to protect and support its obligations under this Agreement and, upon not less than fifteen (15) days written request, shall provide to ASPIRE a copy of its insurance policy. Such policy shall include ASPIRE and its affiliates and any other such entities as ASPIRE may reasonably request, as additional insureds. Customer will furnish to ASPIRE original certificates and additional insurance endorsements evidencing the specified insurance coverage upon request. Customer’s insurance coverage will extend not less than three (3) years following the date this Agreement expires or is terminated. Acceptance of any insurance certificate by ASPIRE does not constitute acceptance of the adequacy of coverage or compliance with the requirements of this Agreement.

14. Intellectual Property. Customer is responsible for doing any and all freedom to operate assessments regarding possible infringement of third party intellectual property rights for Product.

15. Notices. All notices and other communciations required under this Agreement shall be sent by certified or registered mail, or by an internationally recognized overnight delivery service. All such notices and communications shall be deemd to have been received by delivery service, when received or if received after 5:00 p.m. (local time of the receiver), on the next following day. All notices and communications shall be sent to, and in the case of ASPIRE 41 Veronica Avenue, Somerset, NJ 08873 Attention: Madhav Pai, CEO.

16. Independent Contractors. Nothing contained in Conditions shall be construed to create a partnership, joint venture or agency relationship between Customer and ASPIRE, and neither Party is authorized to bind the other in any way.

17. Severability; Cumulative Remedies. If any provision of Conditions is held to be invalid or unenforceable for any reason, such provision shall be conformed to be prevailing law rather than voided, if possible, in order to achieve the intent of the parties and, in any event, the remaining provisions of this Agreement shall remain in full force and effect and shall be binding upon the parties hereto. Except as expressly stated in Section 9, no remedy referred to in these Conditions is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to in this Agreement or otherwise available under applicable law.

18. ASPIRE advises, and Customer acknowledges that, the Products resulting from the services performed under these Conditions may not be used in the production, encapsulation, packaging or marketing of any product which is in violation of any applicable laws or with any person or entity on any applicable government sanction, restricted party or denial list without a license or otherwise in violation of applicable laws.

19. Customer represents, warrants, covenants and agrees that (i) it is not, and will not, in connection with any Product, do business with or sell directly or indirectly to the Government of Iran, the Iranian Military or Iranian military or law enforcement purchasers or importers, Iran’s petroleum sector or Iran’s development of weapons of mass destruction, Iranian Specially Designated Nationals, or entities considered by the U.S. to be supporters of terrorism or proliferators of weapons of mass destruction (which entities can be identified by accessing the U.S. Office of Foreign Asset Control “Blocked Persons and Specifically Designated Nationals List” http://sdnsearch.ofac.treas.gov/); and (ii) it is aware of and, hereby confirms its compliance with, all applicable economic sanctions, including, without limitation, any applicable U.S. economic sanctions.

20. Adverse Events. ASPIRE shall promptly notify and forward to Customer any information concerning any potentially serious or unexpected side effect, injury, toxicity or sensitivity reaction or any unexpected incidence or other adverse experience related to the Product (an “Adverse Experience”) reported to it. Customer agrees that it shall be solely responsible to review, analyze and respond to any Adverse Experience. ASPIRE shall have no obligation with respect to an Adverse Experience other than the obligation to notify Customer.

21. Miscellaneous. (a) These Conditions and the Formula Agreement, if applicable, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all previous and contemporaneous representations, agreements or understandings, whether oral or written, between the parties with respect to the subject matter hereof. In the event of a conflict between the terms of these Conditions and the Formula Agreement, these Conditions shall control. These Conditions stated herein shall be controlling over any terms and conditions included in any purchase order Customer uses to order Product. All purchase orders Customer submits to ASPIRE shall be deemed to incorporate and be subject to these Conditions. Any term or condition of a purchase order or other communication Customer submits to ASPIRE that is different from, inconsistent with or contrary to the terms and conditions of these Conditions will be null and void and without effect notwithstanding ASPIRE’s acceptance of the purchase order. ASPIRE’s failure to object to any provisions contained in any such communication from Customer will not be deemed a waiver of this provision. (b) A waiver of any breach or failure to enforce any of these Conditions shall in no way affect, limit or waive a party’s rights at any time to enforce strict compliance therafter with every term or condition of these Conditions. (c) Neither party hereto shall assign or otherwise transfer its rights or obligations under the Agreements to any other person or entity without the other party’s prior written consent except or in connection with a merger or the sale of all or substantially all of such party’s business or assets; provided, however, that ASPIRE may assign any or all of the Agreements to any affiliate of ASPIRE. (d) For purposes of this Agreement, “affiliate” with respect to a party, means any person or entity that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with a party, where “control” means the direct or indirect, legal or beneficial ownership of more than fifty percent (50%) of the outstanding voting rights in a person or entity or the ability to otherwise direct the management of a person or entity; provided however, that with respect to ASPIRE “affiliate” shall be limited to persons or entities who directly or indirectly through one or more intermediaries are controlled by the parent of ASPIRE’s direct parent entity. (e) These Conditions shall be governed by the laws of the State of New Jersey, USA, without regard to its conflicts of law provisions and the parties THE PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO A TRIAL BY JURY. (h) The parties agree to submit all disputes between them, except for requests for injunctive relief, relating to these Conditions or the alleged breach or interpretation thereof, to binding arbitration. Within thirty (30) days after either party has notified the other in writing that it is submitting a dispute to arbitration, one arbitration shall be chosen under the then current Rules of the American Arbitration Association (“AAA”) pertaining to commercial disputes. The arbitration shall be held in Somerset County, NJ and will be conducted according to the rules of the AAA. The arbitration decision shall be binding and may be enforced by any court of competent jurisdiction. The party prevailing in the arbitration or other legal proceedings is entitled to recover its litigation costs, including reasonable attorney’s fees. In no case shall the arbitrator be authorized to award cost and damages otherwise prohibited herein. (i) These Conditions may be modified or amended without the prior written agreement of ASPIRE.