Exhibit 10.1
This Assignment Agreement ("Agreement") is made and entered into on the 12th day
of April 2011 ("Effective Date")
BETWEEN:
GROWERS SYNERGY PTE LTD, (the "ASSIGNOR"), Company No 200920853Z, a limited
liability company incorporated in Singapore whose registered office is at
14 Chin Bee Road, Singapore 619824; and
STEVIA VENTURES INTERNATIONAL LTD. (the "ASSIGNEE"), Company No 010338747,
a limited liability company incorporated in the British Virgin Islands
having its registered office at Walkers Chambers, 171 Main Street, Road
Town, Tortola VG1110, British Virgin Islands.
WHEREAS the Assignor has legally assumed a supply agreement with PureCircle
dated the 20th day of February 2009 to supply dry stevia leaf (the "Contract")
attached as EXHIBIT A by an assignment agreement dated the 30th day of November
2009 attached as EXHIBIT B; and
WHEREAS the Contract is in good standing; and
WHEREAS the Contract may be assigned per clause 10.1 of the Contract and no
consent shall be required for an assignment by either Party to its Affiliate so
long as the assignment does not result in a change to the conditions of the
Contract in any way.
WHEREAS the Parties meet the definition of Affiliate as defined in the Contract
and Assignor desires to assign the Contract to Assignee and Assignee desires to
accept the assignment from Assignor without altering the conditions of the
Contract in any way.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. The Assignor shall assign the Contract as of the Effective Date and
Assignee shall accept the assignment as of the Effective Date.
2. Assignor certifies that
a. the contract is in good standing and is legally assignable;
b. the Assignor meets all requirements to legally assign the contract;
c. the Assignee is an Affiliate of Assignor;
d. there are no liens or other liabilities attached to or associated with
the Contract;
e. the Contract attached as EXHIBIT A constitutes the entire
understanding and agreement of the Parties with respect to the subject
matter contained therein and supersedes all prior and contemporaneous
agreements and understandings.
3. Assignee certifies that
a. the Assignee meets all requirements to legally accept assignment of
the contract;
b. the Assignee is an Affiliate of Assignor;
c. the Assignee accepts the Assignment without alteration to the
Contract.
4. This assignment Agreement shall be construed in accordance with the laws
the Republic of Singapore which shall govern the validity of this
Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto, if either party
files a legal action the against the other.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the
Effective Date set forth above.
ASSIGNOR: ASSIGNEE:
GROWERS SYNERGY PTE LTD STEVIA VENTURES INTERNATIONAL LTD.
By: /s/ George S. Blankebaker Jr By: /s/ George S. Blankebaker Jr
---------------------------------- --------------------------------
Authorized Signature Authorized Signature
NAME: George S Blankenbaker Jr NAME: George S Blankenbaker Jr
TITLE: Managing Director TITLE: President
This Assignment Agreement ("Agreement") is made and entered into on the 30thday
of November 2009 ("Effective Date")
BETWEEN:
WATERLAND HOLDINGS PTE LTD, (the "ASSIGNOR"), a limited liability company
incorporated in Singapore whose registered office is at 48 Toh Guan Road
East, #06-152 Enterprise Hub, Singapore 608586; and
GROWERS SYNERGY PTE LTD, (the "ASSIGNEE"), a limited liability company
incorporated in Singapore whose registered office is at 14 Chin Bee Road,
Singapore 619824.
WHEREAS the Assignor has executed a supply agreement with PureCircle dated the
20th day February of 2009 to supply dry stevia leaf (the "Contract"); and
WHEREAS the Contract is in good standing; and
WHEREAS the Contract may be assigned per clause 10.1 of the Contract and no
consent shall be required for an assignment by either Party to its Affiliate so
long as the assignment does not result in a change to the conditions of the
Contract in any way.
WHEREAS the Parties meet the definition of Affiliate as defined in the Contract
and Assignor desires to assign the Contract to Assignee and Assignee desires to
accept the assignment from Assignor without altering the conditions of the
Contract in any way.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. The Assignor shall assign the Contract as of the Effective Date and
Assignee shall accept the assignment as of the Effective Date.
2. Assignor certifies that
a. the contract is in good standing and is legally assignable;
b. the Assignor meets all requirements to legally assign the contract;
c. the Assignee is an Affiliate of Assignor;
d. there are no liens or other liabilities attached to or associated with
the Contract;
e. the Contract attached as EXHIBIT A constitutes the entire
understanding and agreement of the Parties with respect to the subject
matter contained therein and supersedes all prior and contemporaneous
agreements and understandings.
3. Assignee certifies that
a. the Assignee meets all requirements to legally accept assignment of
the contract;
b. the Assignee is an Affiliate of Assignor;
c. the Assignee accepts the Assignment without alteration to the
Contract.
4. This assignment Agreement shall be construed in accordance with the laws
the Republic of Singapore which shall govern the validity of this
Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto, if either party
files a legal action the against the other.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the
Effective Date set forth above.
ASSIGNOR: ASSIGNEE:
WATERLAND HOLDINGS PTE LTD GROWERS SYNERGY PTE LTD
By: /s/ George S. Blankebaker Jr By: /s/ George S. Blankebaker Jr
---------------------------------- --------------------------------
Authorized Signature Authorized Signature
NAME: George S Blankenbaker Jr NAME: George S Blankenbaker Jr
TITLE: Managing Director TITLE: President
20th February 2009
SUPPLY AGREEMENT
between
WaterLand Holdings Pte Ltd
as Supplier
and
PureCircle Sdn Bhd
as Customer
relating to
Supply of Stevia Leaves
THIS AGREEMENT is dated the 20th day February of 2009 and made BETWEEN:
(1) WaterLand Holdings Pte Ltd, (the "Supplier"), a limited liability company
incorporated in Singapore whose registered office is at 48 Toh Guan Road
East, #06-152 Enterprise Hub, Singapore 608586; and
(2) PureCircle Sdn Bhd, (the "Customer"), (Company No. 578803-K) a limited
liability company incorporated in Malaysia whose Malaysian registered
office is at 3A-12, Perdana The Place, No. 1 Jalan PJU 8/5G, Damansara
Perdana, 47820 Petaling Jaya, Selangor Darul Ehsan, Malaysia.
WHEREAS:
(A) The Supplier carries on the business of engaging in agriculture and related
ancillary businesses and Supplier has competent techniques, capacity and
qualifications for, and intends to engage and invest in the growing of
Stevia. Supplier has represented that it has plans to conduct R&D and
establish nurseries and test plots in the countries of Vietnam, Indonesia,
and Thailand for the purpose of developing commercial scale propagations
and plantations.
(B) The Customer carries on the business of Stevia extract production and sale
of Stevia extract products ("Business"), and based on representation by
Supplier in recital (A) above is desirous to entrust Supplier to produce
Products (as defined herein) and purchase the Products from the Supplier
for that Business.
(C) The Supplier is desirous to plant the Stevia Seedlings and supply the
Products only to the Customer to the exclusion of other customers and the
Customer is desirous to purchase the same, on the terms and conditions as
set out in this Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"Business Day" means a day, other than a Saturday or Sunday, on which banks are
open for ordinary banking business in Malaysia.
"Companies Act" means the Malaysian Companies Act 1965.
"Parties" means, collectively, the Supplier and the Customer, and the term
"Party" shall refer to either of them as the context may require.
"Products" means the products set out in Schedule 1.
"Reb A" means Rebaudioside A.
"Specification" means the specification of the Products set out in Schedule 2 or
any other specification of the Products agreed in writing between the Supplier
and the Customer from time to time.
"Stevia Seedlings" means suitable stevia planting materials (ie cutting/roots).
"Year" means any reference to a "year" is to that year in accordance with the
Gregorian calendar.
"US$" means the United States dollar
In this Agreement where the context admits:
(A) "subsidiary" and "holding company" shall have the same respective meanings
as in the Companies Act and "Subsidiary" shall mean a subsidiary of the
Company ;
(B) references to, or to any provision of, any treaty, statute, directive,
regulation, decision, order, instrument, by-law, or any other law of, or
having effect in, any jurisdiction ("Laws") shall be construed also as
references to all other Laws made under the Law referred to, and to all
such Laws as for the time being amended, re-enacted (with or without
amendment), consolidated or replaced or as their application is modified by
other Laws from time to time;
(C) references to clauses and schedules are references to the clauses of and
schedules to this Agreement and references to this Agreement include the
schedules and the Agreed Form documents;
(D) references to the singular shall include the plural and vice versa and
references to the masculine, the feminine and the neuter shall include each
other such gender;
(E) "person" includes any individual, partnership, body corporate, corporation
sole or aggregate, state or agency of a state, and any unincorporated
association or organisation, in each case whether or not having separate
legal personality; and
(F) "company" includes any body corporate.
1.2 Headings
The headings and sub-headings are inserted for convenience only and shall not
affect the construction of this Agreement.
1.3 Schedules
Each of the schedules shall have effect as if set out herein.
2. Ordering AND SALE OF THE PRODUCTS
2.1 During the continuance of this Agreement, the Supplier shall sell and the
Customer shall purchase all Products produced by the Supplier in any one
Year, subject to the terms and conditions of this Agreement.
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2.2 In addition to producing Products for Customer, the Supplier will also
produce Stevia Seedlings for the purposes of producing the Products for
Customer.
2.3 As long as Supplier meets at least 70% of the volumes as described in
clause 3.5 from its Vietnamese production operations, then the Customer is
obliged to only purchase product in Vietnam from Supplier. In the case that
Supplier fails to meet 70% of the projected volumes in Vietnam, then
Customer is at liberty to purchase the Products from any third parties in
Vietnam.
2.4 Customer will also purchase Product from supplier, from Indonesia and/or
Thailand, as well as Vietnam, up to a combined total volume of 15,000
metric tons of dry leaf per annnum under the same conditions of price,
shipping terms, and quality as defined in this agreement. Upon Waterland
Holding's demonstrated production and quality results in those countries,
Customer may elect to transition other current suppliers in Thailand and
Indonesia to Supplier, and execute a similar mutually exclusive
relationship in those countries at the appropriate time.
2.5 The Supplier shall sell the Products only to the Customer to the exclusion
of other customers on the terms and conditions as set out in this
Agreement. Customer is obliged to purchase all product produced, up to 130%
of the volumes as described in clause 3.5. If customer produces volumes in
excess of 130% of those described in clause 3.5, then customer shall have
the right of first refusal to purchase said volumes. Customer shall, in
good faith, endeavour to purchase such volumes, but is not obliged to do
so. For all volumes for which Customer does not purchase, Supplier may sell
to another party.
3. SPECIFICATION AND QUANTITY OF THE PRODUCTS
3.1 All Products sold by the Supplier to the Customer pursuant to this
Agreement shall conform in all respects to the Specification.
3.2 Subject to clause 8.3, the Supplier and the Customer shall review and agree
on or before 30th September of each Year on any subsequent revisions to the
Specification of the Products applicable for the forthcoming Year.
3.3 The Supplier will permit the Customer or the Customer's representative at
all reasonable times to enter the Supplier's premises and growing sites for
the purpose of inspecting the Products and Stevia Seedlings and the
processing, packaging and storage operation (whether or not owned by the
Supplier) relating to the Products and Stevia Seedlings, and will as
reasonably requested by the Customer, supply without cost random samples of
the Products and Stevia Seedlings for testing by the Customer or its
representatives, to ensure that the growing conditions of the Stevia
Seedlings and Products conform with the Customer's requirements and that
the Products and Stevia Seedlings will meet with the Specifications.
3.4 The Supplier may consult with the Customer from time to time during the
continuance of this Agreement in order to ensure that the Specification of
the Products to be sold by the Supplier to the Customer is acceptable to
the Customer. Any amendments to the Specification or to the growing
conditions of the Products shall be agreed in writing by both Parties.
3.5 During the first two (2) Years, the Supplier shall supply the Customer with
approximately 15,000 metric tonnes in 2009 and 15,000 metric tonnes in 2010
of the Product and the Supplier shall provide the Customer with prior
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notice at any time during the first two (2) Years if it has reason to
believe that it would be substantially over or under produced to fulfil the
forecast volumes under this clause.
3.6 Subject to clause 8.1, the Supplier and the Customer shall review and on or
before 30th September of each Year on the quantity of the Products to be
supplied by the Supplier to the Customer in the forthcoming Year and the
Supplier shall provide the Customer with prior written notice at any time
during the year following the revision if it has reason to believe that it
would be unable to fulfil its forecast volumes under this clause.
4. MANUFACTURE AND DELIVERY OF THE PRODUCTS
4.1 Delivery of the Products shall be at terms CIF Guangzhou or Shenzen Port in
China. The supplier shall deliver, at their costs, to the port of entry
into China. The Customer shall, at their expense, import, clear and provide
all activities to nationalize the product into China. The Supplier shall
provide all necessary export documents, in advance, to facilitate the
timely clearing of the product.
4.2 The Supplier shall ensure that the Products are thoroughly inspected and
meet the Specifications prior to the delivery of the Products as described
in clause 4.1.
4.3 The Supplier shall take all reasonable steps including BUT not limited to
propagation activities to continue to improve the quality of the Products.
4.4 The Customer shall upon receiving Products at the Customer's warehouse
inspect the Products within fourteen (14) Business Days of such delivery
and notify the Supplier upon inspection of any defect by reason of which
the Customer alleges that the Products delivered are not in accordance with
the Specification and which should be apparent on reasonable inspection.
4.5 If the Customer FAILS to give any notice as described in clause 4.4 then,
except in respect of any defect which is not one which should be apparent
on reasonable inspection, the Products shall be conclusively presumed to be
in all respects in accordance with the Specification, and accordingly the
Customer shall be deemed to have accepted the delivery of the Products in
question and the Supplier shall have no liability to the Customer with
respect to that delivery.
4.6 If the Customer rejects any delivery of the Products which are not in
conformity with the Specification ("Defective Products"), (without
prejudice to clause 8.2 or 8.4) the Customer may still proceed to buy the
Defective Products from the Supplier at such price to be mutually agreed
between the Supplier and the Customer. In the event that the Customer does
not purchase the Defective Products (without any obligations or liability
by the Customer to the Supplier), then the following shall occur:
a) The Supplier shall pay the Customer all the monies paid by the
Customer for the respective Products supplied by Customer to Supplier;
and
b) Supplier can sell the same to such third party provided the proceeds
from that sale shall be utilised in priority to pay the Customer all
the monies paid by the Customer for the respective Products; All
remaining proceeds will be paid to the supplier.
4.7 Risk in and responsibility for the Products shall pass to the Customer once
the Products are received at the Port of Guangzhou (or other acceptable
port). Property and title in the Products shall not pass to the Customer
until the Supplier has received full payment for the Products in accordance
with clause 5.
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4.8 The delivery of the Products by the Supplier to the Customer shall be in
packing sizes and material acceptable to Customer. The Customer shall be
entitled under this Agreement to net off the packaging material weight. The
cost for the packaging shall be paid by the Supplier.
5. PRICE OF THE PRODUCTS AND STEVIA SEEDLINGS AND PAYMENT
5.1 The initial price to be charged by the Supplier to the Customer in respect
of the Products for the first two (2) years is as set out in Schedule 3.
5.2 Subject to clause 8.3, the Supplier and the Customer shall review and on or
before 30th September of each Year on any subsequent revisions to the Price
and price adjustment mechanisms set out in Schedule 3 applicable for the
forthcoming Year provided that the pricing mechanism of the Products for
the forthcoming year shall not exceed 20% of the agreed price of that
material year. IN the calculation of the maximum increase or decrease in
price of 20%, the net annual inflation adjustment of the country in which
the purchase price currency is based and/or net of an annual inflation
adjustment of the producing country further adjusted for by the currency
conversion of the purchase price currency will be considered. The Supplier
and the Customer shall act in good faith to negotiate the terms of the
pricing mechanism of the Products for the forthcoming year.The Supplier and
Customer shall not act unreasonably to frustrate or terminate the
negotiations of the pricing mechanism of the Products for the forthcoming
year.
5.3 The Supplier shall be entitled to reasonably increase the price for the
Products to cover any extra expenditure incurred as a result of the
Customer's instructions which differ from those outlined in this agreement.
6. CONFIDENTIALITY
6.1 Subject to the provisions of clauses 6.2 and 6.3, each party:
(A) shall treat as strictly confidential and use solely for the purposes
contemplated by this Agreement all information, whether technical or
commercial, obtained or received by it as a result of entering into or
performing its obligations under this Agreement and relating to the
negotiations relating to, or the provisions or subject matter of, this
Agreement or any other party to it ("confidential information");
(B) shall not, except with the prior written consent of the party from
whom the confidential information was obtained publish or otherwise
disclose to any person any confidential information except for the
purposes contemplated by this Agreement; and
(C) where any of the confidential information is also privileged, the
waiver of such privilege is limited to the purposes of this agreement
and does not and is not intended to result in any wider waiver of the
privilege and each party shall take all reasonable steps to protect
the privilege of the other party in its respective confidential
information and shall advice the other party promptly in writing if
any step is taken by any other person to obtain any privileged
confidential information of the other party.
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6.2 PERMITTED DISCLOSURES
Each party may disclose confidential information which would otherwise be
subject to clause 6.1 if, and only to the extent that it can demonstrate that:
(A) such disclosure is required by law or by any securities exchange or
regulatory or governmental body having jurisdiction over it, wherever
situated, and whether or not the requirement has the force of law;
(B) the confidential information was lawfully in its possession prior to
its disclosure by the other party (as evidenced by written records)
and had not been obtained from the other party;
(C) the confidential information has come into the public domain other
than through its fault or the fault of any person to whom the
confidential information has been disclosed in accordance with clause
6.1;
provided that any such disclosure shall not be made without prior consultation
with the party from whom the confidential information was obtained.
6.3 DISCLOSURES TO CERTAIN PARTIES
Each party may for the purposes contemplated by this Agreement disclose
confidential information to the following persons or any of them, provided that
a written confidentiality undertaking in a form equivalent to clause 6.1 has
been obtained from such person:
(A) its professional advisers, auditors, bankers and insurers, acting as
such; and
(B) its directors, officers, senior employees and sub-contractors.
Further to the above, the Customer shall prepare a Contract Verification Letter
for this agreement for general disclosure by the Supplier for verification of
this agreement.
6.4 SURVIVAL OF RESTRICTIONS
The restrictions contained in this clause shall survive the termination of this
Agreement and shall continue for two years from the date of termination.
7. WARRANTIES
The Supplier hereby separately represents warrants and undertakes for itself to
and with the Customers and its successors in title as follows:
A) The Supplier has full legal right, power and authority to execute,
deliver and perform their obligations under this Agreement; and
B) There is no provision of any existing contract, agreement or
instrument binding the Supplier which has been or would be contravened
by the execution and delivery of this Agreement or by the performance
or observance by the Supplier of any of the terms hereof.
The Customer hereby separately represents warrants and undertakes for itself to
and with the Supplier and its successors in title as follows:
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A) The Customer has full legal right, power and authority to execute,
deliver and perform their obligations under this Agreement; and
B) There is no provision of any existing contract, agreement or
instrument binding the Customer which has been or would be contravened
by the execution and delivery of this Agreement or by the performance
or observance by the Customer of any of the terms hereof.
8. TERM AND TERMINATION
8.1 This Agreement shall come into force on 20 February 2009 and, subject to
earlier termination pursuant to clauses 12.4, 8.2, 8.3 or 8.4 below, shall
continue in force for a period of three (3) years ("Term").
8.2 Either party may terminate this Agreement forthwith by giving written
notice to the other in any of the following events:
(A) if the other party commits any material breach of any of the terms and
conditions of this Agreement and fails to remedy that breach (if
capable of remedy) within one month after notice from the other party
requiring it to be remedied and giving full particulars of the breach;
or
(B) if the other party has a winding up petition presented against it or
enters into liquidation whether compulsory or voluntary (except for
the purposes of bona fide reconstruction or amalgamation with the
prior approval of the other party), or compounds with or makes any
arrangement with its creditors or makes a general assignment for the
benefit of its creditors, or if it has a receiver, manager,
administrative receiver or administrator appointed over the whole or
substantially the whole of its undertaking or assets, or if it has an
administration petition presented or administration application made
against it or a notice of intention to appoint an administrator has
been given to any person or if it ceases or threatens to cease to
carry on its business, or makes any material change in its business,
or if it suffers any analogous process under any foreign law.
8.3 The Customer is at liberty to terminate the Agreement without any liability
whatsoever to the Supplier if the review of the Specifications (as ascribed
in clause 3.2 hereto); or the Pricing ( as ascribed in clause 5.2 hereto)
is not agreed between the Supplier and the Customer in writing at least 60
days prior to the end of each Year.
8.4 CONSEQUENCES OF TERMINATION
Upon termination in accordance with this clause 8 or clause 12.4:
(A) the rights and obligations of the parties under this Agreement shall
terminate and be of no future effect, except that clauses 1, 6 and 11
shall remain in full force and effect;
(B) any rights or obligations to which any of the parties to this
Agreement may be entitled or be subject before such termination shall
remain in full force and effect;
(C) termination shall not affect or prejudice any rig ht to damages or
other remedy which the terminating party may have in respect of the
event which gave rise to the termination or any other right to damages
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or other remedy which any party may have in respect of any breach of
this Agreement which existed at or before the date of termination.
9. LIMITATION OF LIABILITY
9.1 The provisions of this clause 9 set out the entire financial liability of
the Supplier (including any liability for the acts or omissions of its
employees, agents and sub-contractors) to the Customer in respect of:
(A) any breach of this Agreement; and
(B) any representation, statement or tortious act or omission including
negligence arising under or in connection with this Agreement;
(C) Product liability, Product safety only as it pertains to any specific
act of negligence traceable to the supplier;
(D) voluntary or involuntary recall of the Products only as it pertains to
any specific act of negligence traceable to the supplier;
9.2 All warranties, conditions and other terms implied by statute or common law
are to the fullest extent permitted by law, excluded from the terms of this
Agreement.
10. PROVISIONS RELATING TO THIS AGREEMENT
10.1 ASSIGNMENT
Either party must have the prior written consent of the other party to assign
all or any part of its rights and benefits under this Agreement to a third
party. No consent shall be required for such an assignment to any subsidiary,
Affiliate, or holding company of either party to its affiliate so long as the
assignment does not result in a change to the conditions of the agreement in any
way.
10.2 SUB-CONTRACTING
The Supplier shall be entitled to carry out its obligations under this Agreement
through any agents or sub-contractors appointed by it in its absolute discretion
for that purpose subject to the written consent of the Customer.
10.3 ENTIRE AGREEMENT
(A) This Agreement, together with any documents referred to in it,
constitutes the whole agreement between the parties relating to its
subject matter and supersedes and extinguishes any prior drafts,
agreements, undertakings, representations, warranties and arrangements
of any nature, whether in writing or oral, relating to such subject
matter, and can be amended only by written agreement amongst the
Parties.
(B) The Parties acknowledge that they have not been induced to enter into
this Agreement by any representation or warranty other than those
contained in this Agreement and, having negotiated and freely entered
into this Agreement, agree that they shall have no remedy in respect
of any other such representation or warranty except in the case of
fraud. The Parties acknowledge that their legal advisers have
explained to them the effect of this clause.
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(C) No variation of this Agreement shall be effective unless made in
writing and signed by each of the parties.
10.4 RIGHTS ETC CUMULATIVE AND OTHER MATTERS
(A) The rights, powers, privileges and remedies provided in this Agreement
are cumulative and are not exclusive of any rights, powers, privileges
or remedies provided by law or otherwise.
(B) No failure to exercise nor any delay in exercising by any party to
this Agreement of any right, power, privilege or remedy under this
Agreement shall impair or operate as a waiver thereof in whole or in
part.
(C) No single or partial exercise of any right, power privilege or remedy
under this Agreement shall prevent any further or other exercise
thereof or the exercise of any other right, powers, privilege or
remedy.
10.5 COSTS
Subject to any express provisions to the contrary each party to this Agreement
shall pay its own costs of and incidental to the negotiation, preparation,
execution and carrying into effect of this Agreement.
10.6 INVALIDITY
If any provision of this Agreement shall be held to be illegal, void, invalid or
unenforceable under the laws of any jurisdiction, the legality, validity and
enforceability of the remainder of this Agreement in that jurisdiction shall not
be affected, and the legality, validity and enforceability of the whole of this
Agreement in any other jurisdiction shall not be affected.
10.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts, which shall
together constitute one Agreement. Any party may enter into this Agreement by
signing any such counterpart.
10.8 NOTICES
(A) Any notice (which term shall in this clause include any other
communication) required to be given under this Agreement or in
connection with the matters contemplated by it shall, except where
otherwise specifically provided, be in writing in the English
language.
(B) Any such notice shall be addressed as provided in clause 10.8(C) and
may be:
(1) personally delivered, in which case it shall BE deemed to have
been given upon delivery at the relevant address if it is
delivered not later than 17.00 hours on a Business Day, or, if it
is delivered later than 17.00 hours on a Business Day or at any
time on a day WHICH is not a Business Day, at 09.00 hours on the
next Business Day; or
(2) if within Malaysia, sent by first class pre-paid post, in which
case it shall be deemed to have been given two Business Days
after the date of posting; or
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(3) if from or to any place outside Malaysia, sent by pre-paid
airmail, or by air courier in which case it shall be deemed to
have been given seven Business Days after the date of posting in
the case of airmail or two Business Days after delivery to the
courier, in the case of air courier;
(4) sent by facsimile, in which case it shall be deemed to have been
given when despatched, subject to confirmation of uninterrupted
transmission by a transmission report provided that any notice
despatched by facsimile after 17.00 hours on any Business Day or
at any time on a day which is not a Business Day shall be deemed
to have been given at 09.00 on the next Business Day; or
(5) sent by electronic mail, in which case, it shall be deemed to be
given when received but subject to the same provisions regarding
receipt after 17.00 hours as apply to notices sent by facsimile;
(C) The addresses and other details of the parties referred to in clause
10.8(B) are, subject to clause 10.8(D):
Name: WaterLand Holdings Pte Ltd
For the attention of: George Blankenbaker
Address: 14 Chin Bee Road, Singapore 619824
Facsimile number: +(65) 6-515-9929
E-mail address: george@waterlandholdings.com
Name: PureCircle Sdn. Bhd
For the attention of: Dorn Wenninger
Address: Unit 10-03-02, 3rd Floor, PNB Damansara, No. 19, Lorong
Dungun, Damansara Heights, 50490, Kuala Lumpur, Malaysia
Facsimile number: +603 20939777
E-mail address: dwenninger@purecircle.com
(D) Any party to this Agreement may notify the other party of any change
to the address or any of the other details specified in clause
10.8(C), provided that such notification shall only be effective on
the date specified in such notice or five Business Days after the
notice is given, whichever is later.
10.9 RELATIONSHIP OF THE PARTIES
(A) Nothing in this Agreement shall constitute, or be deemed to
constitute, a partnership between the parties nor, except as expressly
provided, shall it constitute, or be deemed to constitute, any party
the agent of any other party for any purpose.
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(B) Subject to any express provisions to the contrary in this Agreement,
neither Party shall have the right or authority to and shall not do
any act, enter into any contract, make any representation, give any
warranty, incur any liability, assume any obligation, whether express
or implied, of any kind on behalf of the other Party or bind the other
Party in any way.
11. LAW AND JURISDICTION
11.1 MALAYSIAN LAW
This Agreement shall be governed by, and construed in accordance with, Malaysian
law.
11.2 The Supplier shall comply strictly with all applicable requirements
relating to occupational safety and health legislation or similar laws in
Malaysia as well as in the country of operations in which the product is
produced, and the relevant rules and regulations thereunder.
11.3 JURISDICTION
In relation to any legal action or proceedings arising out of or in connection
with this Agreement ("Proceedings"), each of the parties irrevocably submits to
the non-exclusive jurisdiction of the Malaysia courts and waives any objection
to Proceedings in such courts on the grounds of venue or on the grounds that
Proceedings have been brought in an inappropriate forum
11.4 ARBITRATION
(A) Any dispute or difference arising out of or in connection with this
Agreement, including any question regarding its existence, validity or
termination and regardless of the nature of such dispute or
difference, shall be referred to and finally resolved by arbitration
under the Kuala Lumpur Regional Centre for Arbitration ("KLRCA
Rules"), which Rules are deemed to be incorporated by reference into
this Clause, and:
(1) the number of arbitrators shall be three, one of whom shall be
appointed by the party asserting a claim against the other party,
one of whom shall be appointed by the party against whom a claim
has been asserted, and the third of whom shall be selected by
mutual agreement, if possible, within thirty days of the
selection of the second arbitrator and failing which by the
administering authority. In the event the party against whom a
claim has been asserted fails to appoint the second arbitrator
within 15 days after the first arbitrator is appointed by the
Party asserting a claim, then the administering authority shall
select the second and third arbitrators after expiration of the
said 15 days;
(2) the seat of arbitration shall be Malaysia; and
(3) the language to be used in the arbitral proceedings shall be
English.
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12. FORCE MAJUERE
12.1 EFFECT OF FORCE MAJEURE
Neither party shall be deemed to be in breach of this Agreement or otherwise
liable to the other as a result of any delay or failure in the performance of
its obligations under this Agreement if and to the extent that such delay or
failure is caused by force majeure (as defined in clause 12.2) and the time for
performance of the relevant obligation(s) shall be extended accordingly.
12.2 DEFINITION OF FORCE MAJEURE
For the purpose of this clause, "force majeure" means any circumstances not
within the reasonable control of the party concerned including, without
limitation:
(A) any strike, lockout or other industrial action, or any shortage of or
difficulty in obtaining labour, fuel, raw materials or components; any
destruction, permanent breakdown, malfunction or damage of or to any
premises, plant, equipment (including computer systems) or materials;
(B) any action taken by a governmental or public authority of any kind,
including, without limitation, not granting a consent, exemption,
approval or clearance or imposing an embargo, export or import
restriction, rationing, quota or other restriction or prohibition;
(C) any civil commotion or disorder, riot, invasion, war, threat of or
preparation for war;
(D) any accident, fire, or explosion, (other than in each case, one caused
by a breach of contract by or assistance of the party concerned)
storm, flood, earthquake, subsidence, epidemic or other natural
physical disaster.
12.3 OBLIGATIONS OF AFFECTED PARTY
A party whose performance of its obligations under this Agreement is delayed or
prevented by force majeure:
(A) shall immediately notify the other party of the nature, extent, effect
and likely duration of the circumstances constituting the force
majeure;
(B) shall use all reasonable endeavours to minimise the effect of the
force majeure on its performance of its obligations under this
Agreement including the making of any alternative arrangements for
resuming the performance of its obligations which may be practicable
without incurring material additional expense; and
(C) shall, subject to clause 12.4, immediately after the cessation of the
force majeure, notify the other party thereof and resume full
performance of its obligations under this Agreement.
12.4 TERMINATION FOR FORCE MAJEURE
If any force majeure delays or prevents the performance of the obligations of
either party for a continuous period in excess of six months, the party not so
affected shall then be entitled to give notice to the affected party to
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terminate this Agreement, specifying the date (which shall not be less than 30
Business Days after the date on which the notice is given) on which termination
will take effect. Such a termination notice shall be irrevocable, except with
the consent of both parties, and upon termination the provisions of clause 8.4
shall apply
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IN WITNESS whereof each of the parties has executed this Agreement in a manner
binding upon it the day and year first above written.
SIGNED BY
FOR AND BEHALF OF PURECIRCLE SDN. BHD. in the presence of :- )
SIGNED BY
FOR AND BEHALF OF )
WATERLAND HOLDINGS PTE LTD. )
in the presence of:- )
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