1. Scope

(a) These terms and conditions form part of the agreement (the “Agreement”) between ETG Food Products Inc. (“Supplier”) and the buyer (“Company”) for the supply and purchase of products (“Products”).

(b) Applicable Trade Terms, Supplier Product lists, and Purchase Orders (POs) shall form part of this Agreement.

(c) A Trade Term is any document entitled “Trade Term” or “PO” or “DO” or “Purchase Order” dealing with, among other things, the Supplier’s Products list (as defined below) and the Price (as defined below) (“Trade Term”).

(d) This Agreement applies to the exclusion of any other terms that the Company seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.

(e) In case of any conflict, the Trade Term shall have priority, followed by these terms and conditions, then the Supplier’s Product list, and finally the PO.

2. Supply of Products

(a) The Supplier agrees to supply, and the Company agrees to purchase Products as specified in the relevant Trade Term.

(b) If the Trade Term includes a fixed or minimum volume of Products, the Company shall pay the full Price for the same whether ordered under POs or otherwise.

3. Ordering

(a) The Company shall submit POs within the lead time specified in the Trade Term or within a reasonable time prior to the required delivery date.

(b) Each PO will be binding on the Supplier once confirmed in writing or upon actual performance thereof.

(c) The Supplier will notify the Company if Products are unavailable or if the delivery date cannot be met.

4. Delivery, Title, and Risk of Loss

(a) The Supplier shall deliver Products per the PO and relevant Trade Term.

(b) The risk of loss and damage to the Products shall pass to the Company on delivery in accordance with the agreed INCOTERM. If no delivery term has been agreed in the Trade Term or the PO, then the parties agree that delivery will be FCA (Free Carrier) from the location of the Products. The interpretation of the delivery terms shall be in accordance with the then current edition of INCOTERMS at the time the PO is issued.

(c) Legal title to the Products shall not pass to the Company until payment obligations are met in full.

(d) The Company shall inspect Products immediately upon delivery and notify the Supplier of any defects within 24 hours of discovery.

(e) Provided that the Company duly notifies any third party buying the Products from the Company about the Supplier’s retention of title, the Company shall have the right to resell or process the Products as part of the normal conduct of its business, unless or until the Supplier has given written notice to the contrary. Until legal title passes to the Company, the Company shall not (except as permitted under this agreement) part with possession of the Products, and shall keep the Products free from any charge, lien, or encumbrance and shall store the Products so that they are clearly shown to be and identifiable as the property of the Supplier.

5. Rejected Products

(a) The Company shall be entitled to reject delivery of the Products which are damaged, obsolete or inconsistent with the agreed PO (“Rejected Products”), failing which the Products shall be deemed to be accepted unconditionally by the Company and the Company shall forfeit its rights to make a claim against the Supplier or to reject the Products. Any right to reject the Products or to make a claim against the Supplier shall lapse if the Company accepts delivery of the Products.

(b) The Supplier’s liability in respect of Rejected Products shall be limited to, at the option of the Supplier, (i) replacement of the relevant Products within a reasonable time or, (ii) reimbursement of the price paid by the Company to the Supplier for the relevant Products. Return shipments by the Company to the Supplier are only permitted if the Supplier has given its prior written consent

6. Price and Payment

(a) Prices are exclusive of applicable taxes, which shall be invoiced and paid in addition to the price.

(b) The Company shall pay invoices within 30 days of receipt. Late payments may incur interest charges. This is subject to the Company’s Credit Policy.

(c) Payments must be made without any deduction by way of set-off or counterclaim.

7. Warranties, Representations, Undertakings

(7.1) Each Party represents, warrants and undertakes to the other that:

(a) It has full power and authority to enter into and comply with its obligations under this Agreement, and neither entering into this Agreement nor the performance of its obligations under it will breach any other contract or legal restriction binding upon it;

(b) It has and shall at all times maintain all licences, permissions, approvals, authorisations, consents, and permits necessary for the performance of its obligations under this Agreement;

(c) It shall perform its obligations under this Agreement strictly in accordance with all applicable laws and regulations; and

(d) The performance of its obligations under this Agreement shall not infringe the intellectual property rights of any third party.

(e) The Supplier represents, warrants, and undertakes to the Company that it shall have full legal, beneficial, and unencumbered title to the Products at the time of delivery to the Company.

(7.2) The Company represents, warrants and undertakes to the Supplier that:

(a) Products are being purchased solely for the purpose of general trade in a manner approved by the Company;

(b) Its use, sale, supply, and delivery of the Products and products incorporating the Products shall not infringe any patent or other intellectual property rights of the Supplier;

(c) The Supplier will inform the Company prior to issuing a PO if an order of Products has a final destination in a country (each a “Sanctioned Country”) which is the subject of European Union, United States of America, or other sanctions or export controls or penalties;

(d) It shall at all times keep the Products in a good and readily saleable condition and handle the Products with the required care and not commit or perform any act or omission which may affect the quality or safety of the Products; and

(e) It shall not use the Products in any way that may detrimentally affect the reputation of the Supplier or any of the Supplier’s brands.

(7.3) All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose (whether statutory or otherwise) other than those expressly set out in this Agreement are excluded from this Agreement to the fullest extent permitted by law.

(7.4) The Company shall indemnify and hold the Supplier harmless for any breach by it of clause 7.

8. Intellectual Property Rights

(8.1) Nothing in this Agreement shall in any way transfer to the Company, and the Company shall have no rights in or to use, any intellectual property rights owned or used by any ETG Group Company (“ETG IP”). In this Agreement, “ETG Group Company” shall mean any company or partnership of the ETG group, where ETG Group from time to time directly or indirectly owns or controls the voting rights attached to more than 50% of the issued ordinary share capital, or controls directly or indirectly the appointment of a majority of the board, and references to a member of the ETG Group or an ETG Group company or ETG will be construed accordingly.

(8.2) The Company shall not do or omit to do anything which may damage or endanger any ETG IP and shall procure that its Affiliates do not do or omit to do the same. In this Agreement, “Affiliates” means, in the case of the Company, any corporation controlling, controlled by or under common control, whether direct or indirect, with the Company.

(8.3) The Company shall promptly and fully notify the Supplier of any breach of this clause 8 or any actual, threatened or suspected infringement of any of the ETG IP which comes to its notice, and shall at the request and expense of the Supplier do all such things as may be reasonably required to assist the Supplier in taking or resisting any proceedings in relation to any such infringement or claim.

(8.4) The Company shall not sell, offer for sale, handle, manufacture, produce and/or distribute, directly or indirectly, export or import goods that infringe the intellectual property rights of ETG, counterfeits or fakes, or look-alike Products or other products which bear any mark or design which is similar or confusingly similar with the ETG products. Company shall notify ETG forthwith if it becomes aware of the existence, location, import, export, manufacture or distribution of goods that infringe the intellectual property rights of ETG, counterfeits or fakes, or look-alike Products.

(8.5) The Company shall not:

(a) Use any of the ETG IP in any way which might prejudice their distinctiveness or validity or the goodwill of any ETG Group Company or cause confusion or deception;

(b) Use any of the ETG IP or marks confusingly similar thereto in connection with any products other than the Products, and shall not refer to the ETG IP or an ETG Group Company in any way in its literature or any labels without the Supplier’s prior written consent; or

(c) Manufacture, produce, pack or sell during the term of this Agreement and after products similar to the Products or which are likely to cause confusion or deception.

9. Confidentiality

(a) The Supplier may disclose or make available to the Company confidential information in any form relating to its business or that of any ETG Group Company, including information about or relating to products, specifications, business ideas, innovations, processes, strategies and marketing, or the terms or conditions of or the fact that it has entered into this Agreement (the “Confidential Information”). The Company undertakes to keep all Confidential Information strictly confidential, not to use any Confidential Information for any purpose other than the exercise of its rights or obligations under this Agreement, and not to disclose any Confidential Information to any person other than to those of its directors, officers, employees and advisors (“Representatives”) as is necessary for the exercise of its rights and obligations under this Agreement. The Company shall require its Representatives to comply with its obligations under this clause 9 and shall be liable for its Representatives’ compliance with this clause 9. The obligations in this clause 9 shall not apply to Confidential Information which is in or comes into the public domain through no fault of the Receiving Party, is in or comes into the possession of the Receiving Party without breach of this Agreement, or the Receiving Party is required to disclose it by law or any competent regulatory authority.

(b) All Confidential Information shall be returned to the Supplier or destroyed at the Supplier’s request. The obligations of confidentiality set out in this clause 9 shall endure for five (5) years following disclosure under this clause 9, notwithstanding any termination of this Agreement.

(9A) Data Protection and Privacy

(9A.1) The definitions below will have the following meaning:

(a) “Controller”, “Personal Data Breach”, “Data Subject”, “Personal Data”, “Processing” (including the derivatives “Processed” and “Process”) and “Processor”, have the meanings given in the GDPR or, where relevant, the meaning of the essentially equivalent terms in other applicable Data Protection Laws;

(b) “Data Protection Laws” means any applicable law relating to the Processing, privacy, and use of Personal Data including: (i) European Parliament Regulation (EU) 2016/679 (the “GDPR”); (ii) any corresponding national laws or regulations; (iii) the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq (the “CCPA”); and (iv) corresponding guidance, codes or certification mechanisms of the relevant regulatory authority regarding such laws;

(c) “EPD” means ETG Personal Data provided or made available to the Company by (or collected or created for) ETG Controller or a Buyer in connection with this Agreement;

(d) “ETG Controller” means ETG or the relevant ETG Company that is the Controller of the relevant Personal Data for the particular Processing.

(9A.2) Records pertaining to the performance of this Agreement and any application of this Agreement’s provisions (including records to demonstrate its compliance with this clause 9A) may be audited at least annually, or on an ad hoc basis in the event of a breach, by ETG Controller. The audit may cover all information, documentation and records related to the subject matter of this Agreement.

(9A.3) The Company shall reliably back up all data provided, used or generated in connection with this Agreement (with respect to electronic data, in encrypted form of no less than 256 (Two Fifty Six) bit key strength) and shall otherwise establish and maintain adequate organizational and technical safeguards against the unauthorised destruction, theft, use, disclosure or loss of such data in the possession or control of the Company.

(9A.4) Reference to laws includes subordinate legislation and means that law as amended or re-enacted from time to time.

(9A.5) For the purchase of Products, Company is a Processor acting only on ETG Controller’s documented instructions. The context for and purposes of Processing is ETG’s supply and Company’s purchase of Products under this Agreement. It will include all Processing activities required to perform the purchase of Products, will relate to various categories of Personal Data (which may include personal and contact details, employment information, marketing information, financial or payment details) and will affect Data Subjects (which may include ETG Controller employees and staff, customer and clients), as more particularly recorded by the Parties. No special categories of Personal Data will be Processed without ETG Controller’s prior written approval. EPD shall be Processed for the Agreement duration and following termination or expiry as required to comply with the deletion/return obligations below.

(9A.6) The Parties may, individually as separate Controllers, need to Process Personal Data of each other’s representatives. The Company may also Process EPD for the purposes of the purchase of Products as a separate Controller in some respects, as agreed in writing by the Parties.

(9A.7) Company will only Process EPD in accordance with this Agreement as necessary for the purchase of Products from the ETG Controller.

(9A.8) The Company shall: (i) comply with and Process all EPD in accordance with applicable Data Protection Laws; (ii) co-operate and assist ETG Controller with any data protection impact assessments and consultations with (or notifications to) or responding to questions from or investigations by regulators or supervisory authorities; and (iii) promptly inform ETG Controller if any of its instructions infringe Data Protection Laws.

(9A.9) Where the CCPA applies, the Parties acknowledge and agree that:

(a) The Company shall act as a “Service Provider,” as such term is defined in the CCPA, and shall collect, access, maintain, use, process and transfer EPD solely for the purpose of performing the Company’s obligations under this Agreement for or on behalf of ETG Controller and for no commercial purpose other than the performance of such obligations.

(b) The Company shall not sell, disclose, release, transfer, make available or otherwise communicate any EPD to any third party without the prior written consent of ETG Controller, other than disclosures (i) to a sub-contractor for a business purpose pursuant to a written agreement to protect EPD in the same manner as provided herein, (ii) to a third party as necessary to comply with applicable laws, or (iii) as otherwise permitted by the CCPA.

(9A.10) The Company shall ensure that its personnel are subject to an appropriate contractual or statutory duty of confidentiality in relation to the EPD.

(9A.11) The Company personnel shall cease Processing EPD when it is no longer necessary to do so for the purchase of Products or earlier within 15 (Fifteen) business days of ETG Controller’s instruction to do so unless it is subject to a legal obligation to retain the EPD. At ETG Controller’s option, the Company shall securely delete or return that data and shall certify to ETG Controller in writing that it (including its group companies) and each subcontractor has done so.

(9A.12) If the Company receives any complaints, claims, or requests in relation to Processing of EPD (particularly those relating to the exercise of Data Subject rights), it shall, without undue delay, forward such to ETG Controller and cooperate and assist ETG Controller with responding to such as directed by ETG Controller.

(9A.13) The Company warrants it has implemented and shall maintain appropriate technical and organisational measures to protect EPD against a Personal Data Breach, which shall at all times satisfy, at a minimum, the standards required by Data Protection Laws.

(9A.14) If the Company becomes aware of any Personal Data Breach, it shall without undue delay (and in any event within 24 (Twenty Four) hours) notify ETG Controller, investigate the Personal Data Breach, remediate/mitigate any damage and prevent re-occurrence (providing ETG Controller with detailed related information throughout), and cooperate in informing the relevant supervisory authorities or affected Data Subjects.

(9A.15) The Company may appoint sub-processors or allow its group companies to Process EPD. The Company shall notify ETG Controller before the appointment of a new or replacement sub-processor and shall provide ETG Controller with a reasonable period of time to object to the appointment or replacement of any such sub-processor. The Company shall use its reasonable endeavours to respond to any objection raised by ETG Controller including, if ETG Controller’s objection cannot be adequately addressed, the appointment of an alternative sub-processor.

(9A.16) The Company shall ensure subcontractors are contractually bound to the same obligations as contained in this Agreement and shall remain fully liable to ETG Controller for a subcontractor’s performance, as well as for any of its acts or omissions relating to its Processing of Personal Data.

(9A.17) The Company (or any subcontractor) shall only transfer EPD from the UK/EEA to a country outside the EEA or an international organisation where such transfer has been approved in writing by ETG Controller, is subject to appropriate safeguards, and otherwise complies with Data Protection Laws.

10. Force Majeure

(a) If a Force Majeure Event affects a Party, then that Party will not be liable for any non-compliance with this Agreement if and to the extent that it is directly caused by the Force Majeure Event. Such relief from liability is conditional on the affected Party providing prompt notice of commencement of the Force Majeure Event to the other Party, indicating the root cause and expected duration of the impact thereof. Updates as to impact and root cause shall be provided as reasonably requested by the other Party. For the purposes of this clause, a “Force Majeure Event” means riot, war, rebellion, fire, flood, explosion, epidemic, act of God, terrorism, accidental or malicious damage (but excluding any change of law or prohibition, restriction or act of governmental authorities) or any other events similarly beyond the control of the parties hereto which prevents the affected Party from performing one or more obligations under this Agreement.

(b) Following a Force Majeure Event impacting on the Supplier, the Supplier shall use all reasonable efforts to investigate and eliminate the cause of such inability to perform and shall perform to the fullest extent it is able under the circumstances of the Force Majeure Event. If the Supplier has the ability to make partial deliveries of products to any customers, then it shall act in good faith and supply to the Company a fair and reasonable allocation of available supply of Products, to make Products prior to the Force Majeure Event, as decided upon by the Supplier. The Supplier shall do so in accordance with the other terms and conditions of this Agreement not impacted by the Force Majeure Event.

(c) Following a Force Majeure Event impacting the Supplier and preventing the supply of Products, the Company shall be entitled to contract with and receive services and products from other sources. Company shall nevertheless make payment for deliveries of Products that the Supplier is able to make. The parties shall discuss in good faith and agree, such agreement not to be unreasonably withheld or delayed, refunds of any pre-payments, and postponement of fixed purchase commitments and take or pay obligations, on an equitable basis, allocable to the performance suspended by the Supplier during the continuation of the impact of the Force Majeure Event.

11. Limitation of liability

(a) The Supplier’s total liability in contract, tort (including negligence), misrepresentation or otherwise under or in relation to this Agreement shall be limited in the aggregate for each PO to an amount equal to the Price payable by Company for the Products under the applicable PO.

(b) The Supplier shall not be liable to the Company for any indirect, special, indirect or consequential loss, economic loss, increased cost of working or damage resulting from late delivery or wasted expenditure, liability for loss or damage of any nature whatsoever suffered by third parties including any loss of use, loss of production, loss from business interruption, loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill, even if the Supplier is advised in advance of the possibility of any such losses or damages.

(c) Nothing in this Agreement shall exclude, restrict or limit the Supplier’s liability for: death or personal injury caused by its fraud, or losses or damages following breach by the Supplier that cannot under the governing law be excluded.

(d) The Company accepts that the limitations and exclusions set out in this Agreement are reasonable having regard to all the circumstances.

12. Product Recall

(a) If there is a recall of any of the Products, the Company shall provide reasonable assistance to the Supplier in developing a recall strategy and shall work with the Supplier and any applicable governmental agency, entity or authority (a “Governmental Body”) in monitoring the recall operation and in preparing such reports as may be required.

(b) The Company shall not voluntarily initiate any recall of Products that have been supplied to the Company without the prior written consent of the Supplier.

(c) The Company shall, at the request of the Supplier, give the Supplier all reasonable assistance in locating and recovering any Products, or products incorporating the Products, that are not in accordance with the requirements of this Agreement and have been supplied by the Supplier to the Company. The Company shall immediately notify and provide copies to the Supplier of any communications, whether relating to recalls or otherwise, with any Governmental Body. The Company will not disclose or make available to any third party any information related to the product recall.

13. Term and Termination

(a) Without limiting its other rights and remedies, the Supplier may terminate this Agreement immediately by giving written notice to the Company if:

(i) the Company fails to make a payment due under this Agreement by the due date for such payment or otherwise materially breaches this Agreement;

(ii) becomes insolvent or enters into administration or is unable to pay its debts as they fall due or threatens to do any of the foregoing or the equivalent in any jurisdiction;

(iii) there is any change in ownership or control of the Company (excluding internal reorganisations), control for the purposes of this clause 13.1(c) meaning ownership of the voting rights attached to not less than 50% of the issued share capital of that Party or the ability to appoint a majority of the board of management; or

(iv) a Force Majeure Event affecting the Company or Supplier continues and prevents supply of Products for more than 60 days.

(b) On termination of the Agreement for any reason the Company shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.

(c) Termination of this Agreement for any reason shall not affect any rights or obligations that have accrued before termination including the right to claim damages in respect of any breach of this Agreement that existed at or before the date of termination. Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination.

14. General

(a) The Company shall indemnify the Supplier against all claims by any person other than the Company relating to the Products delivered to the Company (whether or not incorporated into other products) or otherwise in connection with this Agreement, including without limitation following breaches of clauses 4.

(b) This Agreement along with all Trade Terms and POs constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(c) No person or entity who is not a party to this Agreement shall have any right to enforce or rely upon any term of this Agreement.

(d) No delay in exercising or non-exercise by any Party of any of its rights, powers or remedies under or in connection with this Agreement (or any part) shall operate as a waiver of that right, power or remedy.

(e) No variation of this Agreement shall be effective unless it is made in writing, refers specifically to this Agreement and is signed by both of the parties.

(f) Each of the provisions of the Agreement is severable. If any such provision or any part of such provision is or becomes illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining provisions of the Agreement or the remaining parts of that provision shall not in any way be affected.

(g) In this Agreement, words shall not be given a restrictive interpretation if they are preceded or followed by words indicating a particular class of acts, matters or things, the expression “including” or “shall include” means “including without limitation” (with related words being construed accordingly), any references to singular include plural (and vice versa) and a statute or statutory provision includes any consolidation, re-enactment, modification or replacement of the same and any subordinate legislation in force under any of the same from time to time.

15. Notices

(a) All notices to be given under the Agreement shall be in writing and in the English language and may be delivered by hand or sent by pre-paid post (by airmail post if to an address outside the country of posting) or fax to the relevant Party at its registered address. Any notice or document shall be deemed served: (a) if delivered by hand, at the time of delivery unless delivered after 5.00 pm in which case the next business day; (b) if posted, two business days after posting (five Working Days if sent by airmail post); and if sent by fax, at the time of transmission printed on the transmission confirmation sheet provided that an error free transmission report has been received by the sender and if the time of transmission is after 5.00 pm on a business day or at any time on a day that is not a business day the notice shall be deemed to have been received at 9.00 am on the next business day. For the purposes of this Agreement, “business day” means a day other than a Saturday, Sunday or public holiday in the Supplier’s country of incorporation when banks are open for business.

16. Language

(a) If the Company is based in a country where the official language is not English, the parties may agree to append a translation to this Agreement in the local language. In the event of any conflict between the English, the local language version of this Agreement, the parties agree that to the extent permitted by the prevailing laws and regulations, the English language version shall always prevail.

17. Laws and Jurisdiction

(a) Unless specified otherwise in a Trade Term, each Party agrees that this Agreement (and each part of it) shall be governed by and construed in accordance with the laws of Canada and the Province of Ontario.

(b) In the event of a dispute arising out of or in connection with this Agreement, then the dispute shall be referred to and finally resolved by the courts of the Province of Ontario.

(c) Any claim or legal suit under or in relation to this Agreement must be brought by the Company within 90 days of the default or cause, and otherwise shall be deemed irrevocably waived and null.

(d) The international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (INCOTERMS) set out in any PO shall apply but where they conflict with this Agreement, this Agreement shall prevail.

(e) The 1980 Vienna Convention on the International Sale of Goods shall not apply to this Agreement.

18. Miscellaneous

(a) No wavier of any term or condition of this Agreement shall be valid unless in writing and signed by both parties.

(b) If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.