Standard Terms and Conditions For Order Acknowledgments and Quotations
This order confirmation is subject to the instructions on the face of this document and the terms and conditions indicated below. As used throughout this order acknowledgment, the following terms shall have the meaning set forth: "Service Provider" means J-PAC, LLC, 25 Centre Road, Somersworth, New Hampshire 03878; "Purchaser" means an independent individual or company who issued a purchase order to Service Provider to provide goods and/or services in accordance with the requirements stated in the purchase order.
- PRICES. The fees to be paid to Service Provider for the manufacture, assembly and/or packaging of Purchaser's products (the "Services") quoted by Service Provider are subject to change without notice after 30 days from the date of quotation. Any tax (other than Service Provider's income or franchise taxes and real or personal property taxes), however denominated and measured, imposed upon the Purchaser's product or upon its manufacture, assembly, packaging, production, storage, inventory, sale, distribution, transportation, delivery, use or consumption shall be paid by Purchaser.
- DELIVERY AND ACCEPTANCE. Unless otherwise stated on the face hereof, delivery will be made F.O.B. Somersworth, NH with shipping charges to be paid by Purchaser. Unless Purchaser shall have selected a carrier within ten (10) days prior to shipping, Service Provider shall select a carrier, but Service Provider shall not thereby assume any liability in connection with shipping nor shall the carrier be construed to be an agent of Service Provider. Risk of loss shall pass to Purchaser upon Service Provider's delivery of the goods to the carrier. Purchaser hereby grants to Service Provider a security interest in the Purchaser's products as security for the performance by Purchaser of all its obligations hereunder together with the right, without liability, to repossess to products with or without notice in the amount of default of any such obligation. Purchaser further authorizes Service Provider to file a UCC-1 financing statement in the appropriate state office or take any other action necessary to perfect the security interest described herein. Purchaser's acceptance shall occur upon delivery, unless Purchaser advises Service Provider in writing within ten (10) days from receipt of the products by Purchaser that the Services do not conform to Service Provider's or Purchaser's specifications.
- ORDERS, CANCELLATION, POSTPONEMENT AND SCHEDULING. All orders require a 60-day lead time, unless otherwise specified on the quotation, and once Service Provider sends a written acknowledgment of the order to Purchaser, the order and shall be deemed final with Purchaser having no right to cancel any order. In the event that Purchaser nonetheless cancels an order or postpones an order indefinitely after Service Provider has sent an acknowledgment, Purchaser shall be invoiced for the full invoice amount on the original delivery date, pursuant to the terms in Section 5. If Purchaser postpones delivery of an order to a date certain within the two (2) months following its original delivery date and has (i) not provided 30 days written notice prior to the original delivery date, and (ii) not received from Service Provider, in its sole discretion, written authorization for such postponement, then the postponed order(s) will be subject to up to a 50% penalty to be billed to Purchaser on the original delivery date. In addition, Service Provider reserves the right to invoice Purchaser for the full invoice amount for any accepted order that is postponed more than 2 months beyond its original delivery date. If Purchaser and Service Provider have agreed to a purchase order for the periodic delivery of Purchaser's products over an extended term (an "Installment Order"), Purchaser will provide a 6-month rolling forecast by part number on a monthly basis.
- PAYMENT FOR WORK OUTSIDE SCOPE OF ORDER. In the event that Purchaser, after placing an order, requests modifications to the scope of the order or requests work not originally included in the order, Purchaser shall be billed at Service Provider's standard rates for the costs of all labor, materials, shipping, and all other expenses incurred by Service Provider in satisfying the request pursuant to the terms in Section 5.
- TERMS OF PAYMENT. Standard payment terms are net 30 days from date of invoice to all firms with an acceptable credit rating as determined by Service Provider. If the financial condition of the Purchaser at any time is such as to give Service Provider reasonable doubt concerning Purchaser's ability to pay, Service Provider reserves the right to require full or partial payment in advance of shipment or to ship the order C.O.D. Invoices shall be issued as shipments are made. Shipments that are cancelled or postponed by Purchaser, without authorization from Service Provider, shall be subject to the payment terms set forth in Section 3 above. Interest at the rate of one and one-half percent (1 1/2%) per month will be charged on any balance due after thirty (30) days. Service Provider shall be entitled to recover from Purchaser all of its costs and expenses (including attorneys' fees) in enforcing its rights to payment or its security interest under this contract.
- FORCE MAJEURE. Service Provider shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control either of Service Provider or Service Provider's suppliers, including, by way of illustration but not limitation, war, sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material, or machinery or technical failure where Service Provider has exercised ordinary care in the prevention thereof.
- MANUFACTURING, ASSEMBLY AND PACKAGING REPRESENTATIONS. Service Provider hereby represents to Purchaser that (a) the Services shall be performed by Service Provider in accordance with applicable provisions of these terms and conditions, Regulatory Standards and Specifications; (b) no product delivered to Purchaser will be knowingly adulterated or misbranded by or on behalf of Service Provider (or any third party controlled by Service Provider) within the meaning of the Federal Food, Drug and Cosmetic Act or its foreign counterparts, as amended ("FFDCA"), or within the meaning of any applicable state or municipal law in which the definitions of adulteration and misbranding are substantially identical with those contained in the FFDCA; (c) Service Provider will not knowingly provide Services that are in violation of any applicable federal, state or local environmental law or regulation, in either the United States or any foreign jurisdiction, including (i) the Federal Controlled Substances Act, as amended, or any applicable state law or its foreign counterparts, (ii) the Fair Labor Standards Act of 1938, as amended, and (iii) the Occupational Health and Safety Act of 1970, as amended; and (d) all Services provided to Purchaser (or shipped to a third party at the direction of Purchaser) shall be processed in conformance with cGMPs, Regulatory Standards and the Specifications. NOTWITHSTANDING THE FOREGOING, SERVICE PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY DESIGN OR MANUFACTURING ISSUE THAT IS NOT WITHIN SERVICE PROVIDER'S CONTROL OR WITHIN THE SCOPE OF THE SERVICES REQUIRED UNDER THE AGREED SPECIFICATIONS.
- ADDITIONAL REPRESENTATIONS. Service Provider hereby represents and warrants to Purchaser that (a) Service Provider has the necessary expertise, personnel, facilities and equipment to perform the Services; (b) Service Provider shall operate and maintain its facilities in compliance with applicable cGMPs and guidelines of FDA and other relevant regulatory authorities; (c) neither Service Provider nor any of its affiliates, nor any member of their respective staffs, have been disqualified or debarred by the FDA for any reason or purpose pursuant to 21 U.S.C. § 335a; and (d) neither Service Provider nor any of its affiliates, nor any member of their respective staffs, have been charged with or convicted under United States federal law for conduct relating to the development or approval of, or otherwise relating to the regulation of, any drug product under the Generic Drug Enforcement Act of 1992 or any other relevant statute, law or regulation. Purchaser has obtained all permits, licenses or authorizations from any applicable agency necessary or required for the sale, marketing or entering into commerce of any Product and the Product complies with all Regulatory Standards applicable to it. NOTWITHSTANDING THE FOREGOING, SERVICE PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY DESIGN OR MANUFACTURING ISSUE THAT IS NOT WITHIN SERVICE PROVIDER'S CONTROL OR WITHIN THE SCOPE OF THE SERVICES REQUIRED UNDER THE AGREED SPECIFICATIONS.
- WARRANTY DISCLAIMER. Service Provider warrants that the Services will be free from defects in workmanship under normal conditions for a period of ninety (90) days from the date of delivery. PURCHASER SPECIFICALLY UNDERSTANDS AND AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY AGAINST SERVICE PROVIDER IS THE REMEDY OF REPAIR OR REPLACEMENT OF THE SERVICES. THE WARRANTIES SET FORTH HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, ANY WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THE WARRANTIES EXPRESSED HEREIN, NEITHER PARTY MAKES ANY WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR THE PRODUCTS. IN NO EVENT SHALL SERVICE PROVIDER BE RESPONSIBLE FOR ANY MODIFICATION, ADULTERATION OR TAMPERING WITH PURCHASER'S PRODUCTS AFTER THEY LEAVE THE FACILITY AND THE CONTROL OF SERVICE PROVIDER.
- LIMITATION OF LIABILITY. WITHOUT LIMITING LIABILITY FOR BREACH OF CONFIDENTIALITY OBLIGATIONS, OR AMOUNTS PAYABLE PURSUANT TO INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, DAMAGES, COSTS OR EXPENSES (INCLUDING LOST PROFITS), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- INTELLECTUAL PROPERTY. To the best of its knowledge, activities undertaken by Service Provider hereunder, the Services will not violate the intellectual property rights of any third party, and Service Provider is not engaged in the theft or misuse of any third party's trade secret information regarding the activities undertaken by Service Provider hereunder, nor does Service Provider have notice of any claim of a third party regarding any such theft or misuse. The Services utilize Service Provider's designs, techniques, processes, data, information, specifications, trade secrets, know-how and other intellectual property protected for Service Provider's benefit by patent, copyright and/or other forms of legal protection or is sensitive and proprietary in nature. Purchaser agrees that it will not disclose to, or use for the benefit of, anyone else, or use for it its own benefit with third parties any of Service Provider's developments, techniques, information, data, designs, devices, specifications, drawings, trade secrets or other proprietary information or Service Provider's methods or manufacturing processes which have been or may be disclosed by Service Provider to Purchaser. Unless otherwise agreed to in writing, Service Provider retains for itself all proprietary rights in and to all engineering designs, manufacturing details, tooling know how and data related to its manufacturing processes.
- INDEMNIFICATION. Purchaser shall defend and hold harmless Service Provider and its officers, directors, employees and agents from and against any third party claims, actions, suits or demands and shall indemnify Service Provider and its officers, directors, employees and agents from any and all damages, losses, costs, expenses (including reasonable attorney's fees) or other liabilities of third Parties (collectively, the "Liabilities") which are finally awarded by a court of competent jurisdiction or in settlement and that arise from (i) any breach by Purchaser of its representations, warranties and/or covenants hereunder; (ii) any gross negligence or willful misconduct or willful omissions by Purchaser or any person for whose actions or omissions Purchaser is legally liable in relation to use of the Product, including, but not limited to the design and specifications of the Product and its intended use; and (iii) a claim that any know-how or intellectual property supplied by Purchaser to Service Provider infringes on a United States patent or any other proprietary rights of any third party.
- ASSIGNMENT. These terms and conditions, and the purchase order to which these terms and conditions are attached, may not be assigned by the Purchaser without the prior written consent of the Service Provider. In the event of a change of control of the Purchaser (defined below), the Purchaser must cause its acquirer to assume the Purchaser's obligations hereunder, unless Servicer Provider waives in writing such requirement. "Change of Control" shall mean (a) the acquisition by any Person or group of Persons, by operation of law (including upon merger or consolidation, or upon death or divorce of any equity holder of such Person) or in a single transaction or a series of transactions, of either (i) the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended) of 50% or more of the ownership interest in the Purchaser, (b) the transfer to any person or group of persons of either (i) assets used or held for use by the Purchaser in the manufacture or sale of its products,or (ii) rights, including without limitation by license, to assemble, manufacture, market or sell any of the products, or (c) a change in composition of the Board of Directors (or other governing body) of the Purchaser, with the result that that a majority of the members of the Board (or other governing body) were not members thereof as of the date of the acknowledgment by Service Provider of the purchase order to which these terms and condition are attached, or (d) any other fundamental change in the right to control the conduct and operation of the business activities of the Purchaser.
- APPLICABLE LAW. The validity, performance and construction of these terms and conditions shall be governed by the laws of the State of New Hampshire.
- NON-SOLICITATION. The Purchaser agrees that, for a period of two (2) years after the date of this Agreement, it will not directly or indirectly solicit, hire or seek to induce any of Service Provider's employees to leave Service Provider's employ to work for the Purchaser, any of its affiliates or any of Service Provider's competitors. The parties acknowledge and agree that any activities that violate this Section 15 shall justify the pursuit and enforcement of injunctive relief to protect the Service Provider's interests. Notwithstanding the foregoing, nothing in this Section 15 shall prohibit Purchaser from posting general public employment information in the ordinary course of Purchaser's business, or prohibit any employee of Service Provider from responding to such general public employment information.
- MODIFICATIONS. No changes, modifications or waivers of any provision of these terms and conditions shall be binding unless in writing and signed by a duly authorized representative of each party.
- SEVERABILITY. In the event that any of these terms and conditions shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these terms and conditions shall otherwise remain in full force and effect and enforceable.
- WAIVER. The failure on the part of any party to exercise or enforce any rights conferred upon it hereunder shall not be deemed to be a waiver of any such rights nor operate to bar the exercise or enforcement thereof at any time or times thereafter.