1. Formation of Contract.
1.1. These Terms and Conditions (these “Terms and Conditions”), together with each service order (“Service Order”) provided by Sannova Analytical LLC (“Sannova”), will apply to and be automatically incorporated by reference in all contracts and agreements for the supply of services (the “Services”) by Sannova to the sponsor or client identified in such Service Order (the “Sponsor”).
1.2. These Terms and Conditions will supersede and override any terms or conditions contained in or referred to in the Sponsor’s service or purchase order, confirmation or acceptance of a Service Order and will prevail over any inconsistent terms or conditions implied by course of dealing. The Sponsor accepts and agrees to these Terms and Conditions in lieu of the Sponsor’s terms and conditions.
1.3. The Sponsor’s service or purchase order, written confirmation or acceptance of a Service Order will constitute an offer by the Sponsor to purchase the Services specified in the Service Order upon these Terms and Conditions being incorporated therein. No offer placed by the Sponsor will be accepted by Sannova other than by a written acknowledgement issued and executed by Sannova or (if earlier) by Sannova starting to provide the Services, when a contract for the supply and purchase of such Services based upon these Terms and Conditions will be established and will constitute the entire agreement between Sannova and the Sponsor (this “Agreement”).
1.4. No acceptance or acknowledgement, even if in writing and signed by Sannova, of the Sponsor’s service or purchase order or any other document pertaining to the Services will constitute acceptance of any provision of the Sponsor’s service or purchase order or any other document that conflicts with, amends, varies, or waives these Terms and Conditions unless the amendment, variation or waiver (a) is in writing, (b) specifically references a Section of these Terms and Conditions and states that such Section is intended to be amended by such amendment, variation or waiver, and (c) executed by an officer or duly authorized signatory of Sannova.
1.5. These Terms and Conditions may not be amended, varied or waived by either party unless the amendment, variation or waiver (a) is in writing, (b) specifically references a Section of these Terms and Conditions and states that such Section is intended to be amended by such amendment, variation or waiver, and (c) executed by an officer or duly authorized signatory of Sannova. No failure or delay by Sannova to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same or of some other right, power or remedy.
1.6. If Sannova and the Sponsor have an executed written contract in existence covering the services to be performed by Sannova, the terms and conditions of such contract will prevail to the extent they are inconsistent with this Service Order (including the Terms and Conditions).
2. Services.
2.1. Sannova will perform the Services (a) in a professional manner and by using personnel of reasonably necessary skill, experience, and qualifications, (b) in accordance with applicable laws, and (c) if applicable, in accordance with current GLP and GMP guidelines.
2.2. The Sponsor shall provide reasonable assistance for Sannova to perform the Services. The Sponsor shall be solely responsible for the proper and timely delivery of (a) all materials provided by the Sponsor to Sannova to be used in the performance of the Services hereunder, including products, compounds, excipients, raw materials, component materials, delivery devices and packaging materials, samples, specimen and test items, and (b) all standards provided by the Sponsor to Sannova to be applied by Sannova in connection with the performance of the Services hereunder (collectively, the “Materials”). Sannova accepts no responsibility for any loss, damage or liability that may occur while the Materials are in transit. The Sponsor shall provide Sannova all relevant information to its knowledge and documentation in its possession regarding toxic or other health effects related to handling and storing of the Materials. The Sponsor represents and warrants to Sannova the completeness and accuracy of all documents and information supplied to Sannova for the performance of the Services. The Sponsor shall obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
2.3. Sannova will use reasonable efforts to meet any performance dates specified in a Service Order; provided that any such dates will be estimates only and Sannova will not be liable to the Sponsor to the extent any such failure is attributable to (a) the Sponsor’s failure to provide any Materials or information set out in a Service Order or (b) the Sponsor’s failure to otherwise reasonably cooperate with Sannova in connection with Sannova’s performance of the Services under this Agreement.
2.4. All documents, work products, and other materials described in a Service Order that must be delivered by or on behalf of Sannova to the Sponsor in connection with the performance of the Services (collectively, the “Deliverables”) will be deemed accepted by the Sponsor within thirty (30) days from the date of delivery unless the Sponsor provides Sannova with written notice of any material non-compliance. The Sponsor’s sole and exclusive remedy with respect thereto shall be for Sannova to repeat, at no additional charge to the Sponsor, any portion of the Services that are mutually determined to be materially non-conforming.
2.5. Samples may be destroyed ninety (90) days after the date the test results have been reported, unless the Sponsor indicates otherwise in writing and prepays before the expiration of such 90-day period the entire cost of storing, packaging and shipping the samples by Sannova. Sannova will maintain accurate records of all documentation relating to the Services for a period of five (5) years after completion of the Services.
2.6. Sannova represents to the Sponsor that, to its knowledge, none of its current employees have been debarred by the Food and Drug Administration. Sannova will not knowingly employ any person to perform the Services hereunder who has been debarred.
2.7. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 2.1 ABOVE, SANNOVA MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY: (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
3. Compensation and Payment Terms
3.1. The Sponsor agrees that the amount reflected in the invoice as issued by Sannova shall be due and payable unconditionally. A late payment fee of 1.5% per month (or the maximum amount permitted by law if less than 1.5%) is added for any unpaid balance(s) not paid by the due date, compounded monthly, from the due date of payment.
3.2. Sannova reserves the right to cease all work in the event the Sponsor does not pay its invoices. In the event of default in payment for services rendered, the Sponsor shall be liable for collection and legal fees.
3.3. The Sponsor agrees to accept changes to the prices in the Agreement and to any other aspect of the services to be performed by Sannova resulting from changes to the scope of services, specifications, assumptions, or requirements that arise during the performance of the services, provided that such price changes do not arise as a result of Sannova’s failure to perform the Services in a commercially reasonable manner. Any such price changes will be memorialized in change orders to be executed by both parties.
4. Force Majeure.
No party shall be liable for failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that such failure or delay is due to any event that is beyond a party’s reasonable control, including strikes, lockouts or other industrial disputes, war, riot, civil commotion, terrorist act, malicious damage, epidemics, quarantines, pandemic, emergency measures to address or contain an outbreak, government action, government order, work stoppages, fire, flood, storm, abnormal weather conditions, or natural disaster.
5. Indemnification.
The Sponsor shall indemnify, defend and hold harmless Sannova and its affiliates, and Sannova’s and its affiliates’ respective employees, officers, directors, contractors and agents and their respective successors and assigns (each, a “Sannova Indemnitee”) against all liability, damages, losses and expenses (including reasonable attorneys’ fees) incurred by or imposed upon any Sannova Indemnitee as a direct result of any claims, suits, actions or demands made by any third party to the extent arising out of (a) the Sponsor’s or its employees’ or agents’ breach of any material term or condition of this Agreement, (b) the use by the Sponsor of the Deliverables, (c) the actual or alleged infringement by Sannova of any patent rights or intellectual property rights of any third party as a result of the use by Sannova of any Confidential Information or Materials provided by or on behalf of the Sponsor in the conduct of the Services, or (d) the gross negligence or willful misconduct of the Sponsor, its affiliates or the Sponsor’s or its affiliates’ respective employees or agents; provided that the Sponsor shall not be obligated to indemnify any Sannova Indemnitee for any claims to the extent arising from or occurring as a result of the gross negligence or willful misconduct of Sannova or Sannova’s employees.
6. Limitation of Liability.
6.1. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ANY SERVICE ORDER TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH LOSS WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
6.2. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ANY SERVICE ORDER TO THE CONTRARY, IN NO EVENT WILL SANNOVA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED ONE TIMES THE FEES ACTUALLY PAID TO SANNOVA IN CONNECTION WITH THE SERVICES UNDER WHICH SUCH LOSSES WERE INCURRED DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
7. Termination.
The Sponsor may terminate any Service Order upon written notice to Sannova which shall be effective upon Sannova’s receipt of such written notice. Termination of a Service Order will not affect the rights and obligations of the parties accrued prior to the date of termination. In the event that a Service Order is terminated: (a) at the Sponsor’s expense, Sannova will use all reasonable efforts to conclude or transfer any uncompleted Services to the extent actually paid for by the Sponsor as soon as practical and in accordance with a schedule agreed to by the parties; (b) Sannova will not be required to pay or refund any payments (including upfront payments) paid by the Sponsor to Sannova prior to the date of termination; (d) the Sponsor will pay Sannova (i) all fees owed to Sannova through the effective date of termination for Services performed under such Service Order,
(ii) all reasonable out-of-pocket expenses and agreed upon administration fees incurred by Sannova in connection with Sannova’s performance of the Services (“Pass-Through Costs”) and all other authorized costs and expenses incurred under such Service Order through the effective date of termination, (iii) all non-cancelable costs and expenses incurred before termination of such Service Order but paid after the effective termination date, (iv) all termination payments specified in such Service Order, (v) a cancellation fee reflective of outstanding Services under such Service Order, and (vi) all costs and expenses incurred to complete activities related to termination and close-out of the Services under such Service Order, including fulfillment of any regulatory requirements; and (e) provisions hereunder which by their nature should apply beyond their terms will remain in force after any termination of such Service Order.
8. Governing Law.
This Agreement and each Service Order issued hereunder shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles. The party agree to exclude, waive and opt-out of the application of the United Nations Convention on Contracts for the International Sale of Goods.
9. Dispute Resolution.
The parties shall first attempt in good faith to resolve any dispute by negotiation among the officers designated by each party for a reasonable period of time not to exceed thirty (30) days. In the event that such dispute is not resolved within such thirty (30) day period, either party may submit such dispute to final and binding arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The proceedings shall take place in New York, New York, and be conducted in the English language. In the event of any dispute submitted to arbitration, the prevailing party shall be entitled to reasonable attorneys’ fees and other costs incurred in resolving such dispute.
10. Notices.
All notices must be in writing and delivered in person or sent by (a) personal delivery against a signed receipt, (b) certified mail with postage prepaid and return receipt requested, (c) overnight courier service with service fee prepaid, or (d) email with a hard copy to follow via mail, in any such case, addressed to the intended recipient at its respective address set out in the Service Order or to a party’s last known address.
11. Integration; Assignment; Severability.
This Agreement, together with all Service Orders entered into pursuant to this Agreement, constitute the entire understanding and agreement of the parties, whether written or oral, and supersede all prior and contemporaneous agreements or understandings between the parties regarding the Services and the subject matter of this Agreement. The Sponsor shall not assign or transfer this Agreement or Service Order to any person or entity without Sannova’s prior written consent. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Except as otherwise set forth in this Agreement, this Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to 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. If any provision or remedy provided in these Terms and Conditions is found invalid or unenforceable or unlawful under any applicable law in whole or in part, it shall be either deemed to be amended in so far as it is possible to do so in order to make it enforceable while retaining its purpose, or severed from this Agreement if it is not possible to do so, and the remaining provisions of these Terms and Conditions, including any remaining default remedies, shall be given effect in accordance with the intent hereof.
12. Interpretation; E-Signatures.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or joint venture between the parties, and neither party shall have authority to contract for or bind the other party. Sannova shall remain in all respects an independent contractor. The headings of this Agreement are for convenience only. The term “including” as used in this Agreement means including, without limiting the generality of any description preceding such term. The use of the words “or,” “either,” and “any” is not exclusive, and the term “or” has the meaning represented by the phrase “and/or”. The words “herein”, “hereof”, “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular section hereof. This Agreement and any related agreement between the parties may be executed and delivered by email, PDF or by means of other electronic signature and such email, PDF or other electronic signatures will be deemed to be valid and original.