Additional Service Agreement Conditions and Terms
As used below, the word “Services” includes all procurement, receipt, storage, processing, handling, testing, release and shipping of Materials or Product or any documentation, studies, reports, guidance or any other activities or services performed or provided on behalf of Buyer by Afton Scientific, LLC (“Afton”). “Materials” means any raw materials, ingredients (including drug substance), components, or work in progress, whether provided by, or on behalf of, the Buyer or by Afton. The word “Product” shall mean anything produced by Afton for delivery to Buyer related to the Services.
1. Acceptance. Sale of any Service by Afton Scientific (“Afton”) is expressly conditioned upon the terms and conditions set forth below. Any order for or any statement of intent to purchase any Service or any direction to proceed with engineering procurement, refurbishing, or shipment in connection with any Service, will constitute assent to said terms and conditions and a representation that the Buyer is solvent. Any additional or different terms or conditions set forth in any such communication from the Buyer are hereby rejected by Afton, and will not be effective or binding unless assented to in a writing signed by an authorized Afton representative at Afton’s Virginia office. If there is any inconsistency between this document and the terms of a purchase order, the terms and conditions of this document will prevail. All orders are subject to acceptance by Afton at its offices.
2. Payment. Payment in U.S. Dollars prior to start of manufacturing unless otherwise agreed.
3. Taxes. Prices are stated in U.S. Dollars and do not include any federal, state or local taxes, which are in addition to the purchase price and must be paid by the Buyer. All foreign duties and taxes are the responsibility of the Buyer. Unless Buyer furnishes Afton with a tax exemption certificate, Buyer will pay to Afton any tax on the Service, however designated, levied or based by any taxing- authority, whenever Afton must pay the tax for the Buyer according to applicable law.
4. Force Majeure. Afton shall have no liability whatsoever in the event any act of God, the public enemy or governmental authority, labor dispute, war (whether or not declared), act of terrorism, civil disobedience, riot, epidemic, pandemic, or other occurrence beyond its control shall in any way restrict or prevent the provision of any Services.
5. Disclaimer of Warranties. Afton neither makes nor assumes any warranty, whether statutory, by operation of law, or otherwise, express or implied, with respect to (a) any knowledge, processing, or performance of any Service, Material, or Product, or (b) the safety, merchantability, or fitness for any particular purpose of any Service, Material or Product. Afton does not warrant that any Service, Material or Product conforms to any plans or specifications of Buyer or others or meets any requirements of any country, federal, state or local laws, regulations or ordinances pertaining to safety or insurance requirements, and there is no obligation of Afton as to conformity.
6. Limitation of Liability. Buyer assumes all risk of loss at all times for all Product and Materials related to the Services. AFTON IS NOT LIABLE TO BUYER, OR TO ANY OTHER PERSON OR ENTITY, FOR ANY LOST PROFITS, LOST SAVINGS, LOST MATERIALS, PRODUCT, OR DATA OR OTHER SPECIAL, INCIDENTAL, INDIRECT CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY SERVICES, MATERIALS, PRODUCT OR DELIVERABLES PROVIDED PURSUANT TO THIS AGREEMENT EVEN IF AFTON HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. AFTON’S TOTAL LIABILITY TO BUYER FOR ALL CLAIMS ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE LESSER OF (A) THE TOTAL PAYMENTS RECEIVED BY AFTON FROM BUYER FOR SERVICES UNDER THIS AGREEMENT OR (B) ONE THOUSAND DOLLARS. NOTWITHSTANDING THE FOREGOING, AFTON SHALL HAVE THE RIGHT IN ITS SOLE DISCRETION TO PROVIDE REPLACEMENT SERVICES FREE OF CHARGE IN LIEU OF MAKING THE PAYMENT SET FORTH IN THE PRECEDING SENTENCE. No action, regardless of form, arising OUT OF OR RELATED IN ANY WAY TO this agreement may be brought by buyer more than one year after the cause of action has accrued.
7. Indemnification. Buyer shall indemnify and hold Afton harmless from and against all claims, causes of action, settlement cost, including reasonable attorney’s fees, losses or liabilities of any kind asserted by third persons which arise out of or are related in any way to the Services.
8. Waiver. No claim or right arising out of a breach of this agreement can be discharged in whole or part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.
9. Assignment. Buyer may not assign its rights under this agreement or any interest therein without Afton’s prior written consent.
10. Controlling law. If a dispute arises from or relates to this agreement, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Rules before resorting to arbitration, such mediation to be held in Albemarle County, Virginia. Any unresolved controversy or claim arising from or relating to this contract or breach thereof shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and shall be conducted in Albemarle County, Virginia. The judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction thereof. If the parties agree, a mediator involved in the parties’ mediation may be asked to serve as the arbitrator.
11. Entire Agreement. This Agreement contains the entire agreement of the parties. No modifications or changes may be made to this Agreement except in writing signed by Afton and Buyer. All other agreements are subordinated to and bound by this Agreement. Any termination, cancellation, or expiration of this Agreement notwithstanding, paragraphs 6, 7, and 10, and any provisions which are by their terms intended to survive and continue, will survive and continue.