1. Purpose. These Terms and Conditions of Sale (the “Agreement”) govern all purchases of goods and services (collectively referred to as the “Products”) from Nexus Pharmaceuticals, LLC. (hereinafter referred to as “Company”) by the buyer of such Products (hereinafter referred to as the “Buyer”), unless Company and Buyer have a previously negotiated agreement between them for the sale of components or related services, in which case that agreement shall control. Company hereby rejects any additional, conflicting, or different terms and conditions, including but not limited to Buyer’s terms and conditions. For the avoidance of doubt, Buyer-tendered terms contained in any sales documents (such as a purchase order) presented to Company for consideration, shall have no effect unless otherwise agreed in writing in advance by Company. Notwithstanding anything to the contrary in the Agreement, no person of the Company has authority or shall be deemed by the Buyer to have the authority, to bind the Company by an oral agreement at variance with this Agreement.
In the event of any conflicting terms between a quote, a purchase order, invoice, order confirmation, the terms and conditions of this Agreement and/or any other document related to a sale between Company and Buyer, the terms and conditions of this Agreement shall control. The Agreement can only be modified or amended by written agreement between the parties.
2. Order Acceptance. An order is not accepted by Company unless and order confirmation or invoice has been issued to Buyer in writing. The submission of a purchase order by Buyer does not guarantee fulfillment by Company. Company reserves the right to cancel, modify, or reject any purchase order in its sole discretion, and Company has no affirmative obligation to accept any purchase order tendered by Buyer.
3. Payment and Invoicing. Prices shall be set by Company at Company’s sole discretion. Terms of payment are thirty (30) days after receipt of an invoice, unless otherwise agreed and confirmed in writing by the Company. Buyer shall inform the Company in writing with the details of any disputed amounts within five (5) days of receipt of the relevant invoice. The Buyer shall not be entitled to withhold payment or set-off any amounts due in the event of a payment dispute unless expressly agreed in writing by Company. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on Company’s income.
Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law Company shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder.
4. Delivery. The Products shall (unless otherwise agreed and confirmed in writing by the Company) be delivered FOB shipping point. Risk of loss, injury or destruction to the Products shall be borne by the Buyer once the Products have been shipped by Company in accordance with this Agreement. Company may deliver the Products before the delivery time stated in the purchase order or to make partial deliveries upon notice to Buyer. shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. Company shall have no liability if delivery cannot be made due to inaccurate or incorrect delivery instructions from Buyer.
5. Delays. If Company has reason to believe a delay in delivery of the Products will occur, the Company shall notify the Buyer in a commercially reasonable timeframe, stating the reason for and expected duration of the delay. If a delay persists for more than ninety (90) days, upon written request by Buyer, Company may, in its sole discretion, agree to cancel or modify the delayed order.
6. Defects and Warranties. To the extent Company is reselling the Products, Company shall, the extent available, pass through to Buyer the original manufacturer’s warranties for each Product. Buyer shall look to the original manufacturer for resolution of any claim of defects. Company shall use reasonable commercial efforts to assist buyer in the resolution of any such claim. The Company makes no warranties, either express or implied, regarding the Products (whether manufactured by Company or resold by Company), including any warranty of merchantability, Warranty of fitness for a particular purpose, or warranty against intellectual property infringement, unless otherwise expressly agreed in writing by Company. It is the responsibility of the Buyer to handle, store, and use the Products in the manner in which they are intended. Company is not liable for any inappropriate or negligent handling, storage, or use of the Products.
The Buyer represents and warrants that its use of the Products does not and will not infringe any intellectual property rights of any third party. The Buyer shall indemnify and hold harmless the Company from and against any and all suits, actions, legal proceedings, losses, claims, damages and expenses (including attorney’s fees and expenses) arising out of the use of Products which (i) infringe any intellectual property rights of a third party, or (ii) constitute a violation of competition laws or regulations.
7. Liability. EXCEPT AS PROHIBITED BY LAW, IN NO EVENT SHALL COMPANY’S LIABILITY TO BUYER EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT THAT IS THE BASIS FOR THE PARTICULAR CLAIM. COMPANY WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF COMPANY HAS BEEN ADVISED OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, OR OTHERWISE. BUYER’S SOLE REMEDY UNDER THIS AGREEMENT SHALL BE A REFUND OR REPLACEMENT OF THE RELEVANT PRODUCTS AT COMPANY’S SOLE OPTION.
8. Product Liability; Insurance. The Buyer shall be liable for all damage to persons or objects caused by Buyer’s negligent (or more culpable standard) acts or omissions in the handling, storage, or use the Products. Buyer shall at all times maintain suitable insurance policies with sufficient policy limits to cover claims brought against Buyer or Company, with reputable insurance company/ies against all insurable liability/ies under this Agreement and in respect of the Products, including but not limited to product liability. Buyer’s insurance shall be primary on all claims brought against Buyer or Company in claims related to Buyer’s use of the Products.
9. Termination. A party may by written notice terminate this Agreement with immediate effect: (i) in the event of a material breach of this Agreement by either party, provided however, if and to the extent the breach is curable, that the breaching party has not cured such breach within 30 (thirty) days after having been notified in writing by the other party: or (ii) if the other party enters into liquidation, becomes insolvent or enters into a deed of arrangement for the benefit of its creditors.. Termination shall have no effect on orders placed and confirmed before the notice of termination, even if the order is not yet complete. Company shall have no responsibility for orders placed by Buyer after receipt of Company’s notice of termination.
10. Confidentiality. All information that is not generally known to the public that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is otherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the premises of, the Disclosing Party, that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential, shall be considered “Confidential Information” which shall be held in strict confidence by the Receiving Party for three (3) years from the date of disclosure and shall be used only for purposes of the delivery of Products. Except as required by law, no Confidential Information shall be disclosed to a third party without the prior written consent of the Disclosing Party. If the Receiving Party is legally required to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party shall notify the Disclosing Party immediately in writing, provide the Disclosing Party with a copy of such order, and shall cooperate in seeking a reasonable protective order. If a protective order is not granted, the Receiving Party will disclose only such Confidential Information as is legally required and will use its best efforts to obtain confidential treatment for any Confidential Information that is so disclosed. This Section shall not apply to information which is (i) in the public domain, (ii) already known to the Receiving Party, (iii) developed independently without reference to the Confidential Information, or (iv) received from a third party without similar restriction and without breach of this or a similar agreement.
11. Assignment. The Buyer shall not be entitled to assign or transfer any of its rights and obligations hereunder without the Company’s prior written consent.
12. Force Majeure. Neither of the parties shall be responsible for non-fulfillment any of its rights and obligations hereunder due to reasons of force majeure such as war, civil war, riots, terrorism, general strikes and natural disasters. If a force majeure event continues for a period of more than 60 days either Party may terminate this Agreement immediately.
13. Governing Law; Dispute Resolution. This Agreement shall be construed in accordance with, and any delivery of Products shall be governed by, the substantive laws of the State of Illinois. Any legal action or proceeding arising under this Agreement will be brought in either the state or federal courts in Lake County, Illinois or the Northern District of Illinois and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. Neither the Uniform Commercial Code nor the U.N. Convention on the International Sale of Goods (UNCISG) shall apply to this Agreement.
14. Indemnification. Buyer agrees to indemnify, defend, and hold harmless Company and all of its respective directors, officers, employees, and agents (herein collectively and individually referred to as "Indemnitee(s)") from and against any and all loss, cost, damage, and expense of every kind and description, including, but not limited to, attorneys' fees and litigation expenses, that may be incurred by any Indemnitee as the result of (i) any claims (including lawsuits, administrative claims, regulatory actions, and other proceedings to recover for personal injury or death, property damage, or economic losses) that are related in any way to or arise in any way from Buyer’s acts, omissions, representations, warranties, or performance of (or failure to perform) obligations under this Agreement; and (ii) any award of damages and costs based on the claim that the use of the Products by Buyer infringes a U.S. patent, copyright, or other intellectual property right of any third party (an “IP Claim”). If Buyer believes there is a basis for an IP Claim, Buyer shall promptly notify Company in writing. In such a case, Company shall have the right, at its sole option, to cancel any relevant pending purchase order or any part thereof. In the event that Company does not cancel the purchase order accordingly, Company shall have the right, at its sole option and expense, to either (a) procure the right for Buyer to continue receiving or using the Products as provided in this Agreement, or (b) replace or modify the applicable Product with a product that has substantially similar functionality and that Company believes would not be subject to the IP Claim. If Company deems (a) or (b) not feasible or commercially reasonable in its reasonable judgment, Company has the right to terminate performance under the applicable part(s) of the purchase order. In the event of any termination by or Company hereunder, Company shall refund to the unused portion of any amounts paid by for the affected Products.
If Company performs any work on Buyer’s premises or utilizes the property of Buyer, whether on or off Buyer’s premises, Buyer shall indemnify, defend, and hold harmless any Indemnitee(s) from and against any liabilities, claims, demands or expenses (including actual fees for attorneys, experts and consultants, settlement costs, and judgments) for damages to the property of or injuries (including death) to or its employees or any other person arising from or in connection with Company’s performance of work or use of Buyer’s property.
Buyer’s obligation to indemnify as described herein will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability, or otherwise.
15. Export. Buyer agrees to comply with all applicable export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce. Buyer agrees to indemnify, to the fullest extent permitted by law, Company from and against any fines, penalties, and reasonable attorney fees that may arise as a result of Buyer’s breach of this Section. Buyer agrees to cooperate with and execute any and all necessary documentation to ensure that is in compliance with all applicable U.S. Export Control Laws and Regulations. Buyer agrees and acknowledges that the Products are not intended for resale (other than in use as a component of a finished drug product) and that Company shall have no liability whatsoever for a breach of this provision.
16. Relationship of the Parties. The Parties are independent contractors, and this Agreement shall neither create nor imply an agency relationship between the Parties. Neither Party shall have any authority to act as an agent of the other Party.
17. Compliance with Laws. The Parties shall comply with all applicable local, state, and federal laws, rules and regulations.
18. No Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
19. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the order confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
20. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
20. Returns. All returns are subject to the Company’s discretion and shall be governed by the Nexus Pharmaceuticals Sterile Vial Return Policy
