TERMS AND CONDITIONS OF SALE

Applicable Provisions.  Unless a separate, stand-alone written agreement exists between the Parties, the terms and conditions herein between QuVa Pharma, Inc. (“QuVa”) and customer (“Customer”) (collectively “Parties”) are the sole and complete contract with respect to the product(s) purchased by Customer (“Product” or “Products”) and supersede all other understandings. QuVa rejects those provisions of any order, offer, or other communication from Customer, which are in additional to, different from, or conflict with the terms herein. Neither QuVa’s delivery of the Products nor any other action at any time on the part of QuVa shall constitute acceptance of such additional, different, or conflicting terms. Customer shall be bound by the terms and conditions herein by failing to object in writing hereto within a reasonable time and acceptance of delivery of the Products.

Orders. All orders will be shipped FOB Destination, freight prepaid, and title and risk of loss for the Product shall pass from QuVa to Customer at the time of delivery. Additional charges shall apply for expedited shipping.

Payment and Terms. All accounts or monies due to QuVa shall be payable at its offices located at 3 Sugar Creek Center Blvd, Ste. 250, Sugar Land, Texas 77478 (Attn: Accounts Receivable) on or before thirty (30) days following date of shipment. Service charges on any account over thirty (30) days past due shall accrue at the rate of 1.5% per month (18% per annum) or the maximum non-usurious rate at the time the account is thirty (30) days past due, whichever is lower. In the event the account is past due, Customer agrees to pay all expenses, including reasonable attorney’s fees and court costs. Time is of the essence with respect to payment.

Representations and Warranties.

QuVa represents and warrants as follows:

(A)          QuVa has and will maintain, in full force and effect, all licenses and permits required under applicable federal, state and local law for it to provide the Product.

(B)          QuVa shall comply with all applicable federal, state and local laws governing the handling, sale, and distribution of the Product.

(C)          The label affixed to the Product will identify QuVa as the compounding facility and conform to all laws and regulations governing the labeling of 503B products.

(D)          At the time of delivery, the Product shall (i) be in conformity with the Federal Food, Drug and Cosmetic Act, as amended, and the regulations promulgated thereunder; (ii) not be adulterated or misbranded, within the meaning of the Federal Food, Drug and Cosmetic Act as a result of any act or omission of QuVa; and (iii) be manufactured in compliance with cGMPs and all applicable laws and regulations and shall be free from defects in materials and workmanship. QUVA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE PRODUCT, IMPLIED OR STATUTORY, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, OR IMPLIED WARRANTIES ARISING FROM THE COURSE OF PERFORMANCE.

Customer represents and warrants to QuVa as follows:

(A)          It has the legal authority to outsource its request for the Product to QuVa.

(B)          A request for the Product forwarded to QuVa will be based upon the receipt of medication orders for individual patients or for “office stock” in anticipation of the requested Product.

(C)          The Product provided by QuVa will be for administration to patients and shall not be offered for resale.

(D)          It shall retain all responsibility for patient billing and for complying with all applicable federal and state laws concerning reimbursement for the Product.

(E)           It shall comply with all applicable federal, state and local laws governing the purchase, handling, storage, and administration of the Product.

(F)           CUSTOMER IS A SOPHISTICATED PURCHASER OF THE PRODUCT AND IS AWARE OF THE USES, BENEFITS, LIMITATIONS, HAZARDS, POTENTIAL INJURIOUS PROPERTIES, STORAGE AND ADMINISTRATION REQUIREMENTS OF SUCH PRODUCT PURCHASED FROM QUVA AND HAS INDEPENDENTLY EVALUATED THE SAFETY AND CLINICAL USE OF THE PRODUCT PURCHASED AND HAS DEEMED THESE FORMULATIONS TO BE CLINICALLY APPROPRIATE. FURTHER, CUSTOMER ACKNOWLEDGES THAT QUVA IS STRICTLY RELYING UPON CUSTOMER’S DETERMINATION THAT THE PRODUCT RECEIVED FROM QUVA IS APPROPRIATE AND THEREBY ASSUME ALL LIABILITY AND RISK IN CONNECTION WITH ITS USE OR ADMINISTRATION, INCLUDING, WITHOUT LIMITATION, ANY DIRECT OR INDIRECT INJURY ARISING THEREFROM. EXCEPT AS SET FORTH HEREIN, QUVA MAKES NO REPRESENTATION OR WARRANTY AS TO THE DEVELOPMENT, FORMULATION OR LABELING OF THE PRODUCT EXCEPT THAT IT SHALL BE IN ACCORDANCE WITH THE REQUEST TRANSMITTED AND SHALL MEET ALL LEGAL AND REGULATORY REQUIREMENTS FOR LABELING OF 503B PRODUCTS.

Indemnity. THE PARTIES AGREE TO PROTECT, INDEMNIFY, AND HOLD HARMLESS THE OTHER AND THEIR AGENTS, EMPLOYEES, DIRECTORS AND AFFILIATES FROM AND AGAINST ANY AND ALL DAMAGES, INJURIES, CLAIMS, LIABILITIES AND COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES), WHICH MAY BE INCURRED AS A RESULT OF A BREACH OR THE NEGLIGENT OR INTENTIONAL ACTS OF THE INDEMNIFYING PARTY, OR THEIR AGENTS, EMPLOYEES, DIRECTORS AND AFFILIATES. THIS PROVISION WILL NOT IN ANY WAY LIMIT ANY OTHER STATUTORY, REGULATORY OR COMMON LAW DEFENSE AND HOLD HARMLESS RIGHTS TO WHICH A PARTY MAY BE ENTITLED. SAID INDEMNITY IS IN ADDITION TO ANY OTHER RIGHTS THAT A PARTY MAY HAVE AND SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE RELATIONSHIP.

Limitation of Liability. IN NO EVENT WILL THE PARTIES BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, ARISING FROM PERFORMANCE UNDER, OR RELATING TO, THE SERVICES OR PRODUCTS PROVIDED HEREUNDER.  THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE RELATIONSHIP.

Confidentiality. From the date of Customer’s most recent purchase and for a period of three years thereafter, except as must be reasonably disclosed to attorneys, accountants and other professionals necessary to carry out the business of a Party or becomes public knowledge through no fault of a Party, the Parties shall not disclose, communicate, or use for the direct or indirect benefit of any other person or entity any confidential information regarding another Party’s business methods, business policies, pricing procedures, techniques, or trade secrets, fees or financial information or other knowledge or processes developed by another Party or any other confidential information relating to or dealing with the business operations or activities of another Party, made known to the Parties or learned or acquired by the Parties hereunder. A Party may use or disclose confidential information of another Party to the extent necessary to comply with applicable law or legal process, provided that, such Party shall: (a) give prompt written notice to the disclosing Party and allow the disclosing Party to object to all or any portion of the disclosure before it is disclosed; (b) if advance notice is not possible, provide written notice of disclosure immediately thereafter; and (c) to the extent possible, minimize the extent of such disclosure. This section shall survive termination or expiration of the relationship.

Force Majeure. Other than the obligation to pay money, the obligations to perform shall be excused during a period of delay caused by acts of God or by shortages of power or government orders or other causes which are beyond the reasonable control of a Party obligated to perform (“Force Majeure Event”). In the event that a Party ceases to perform its obligations due to the occurrence of a Force Majeure Event, such Party shall: (1) immediately notify the other Party in writing of such Force Majeure Event and its expected duration; and (2) take reasonable steps to recommence performance of its obligations as soon as possible.

Claims and Returns.  QuVa does not accept returned Products in the normal course of its business and will only accept returns and provide credit in limited circumstances.

Credit will be issued in the following circumstances:

(a)           Products shipped in error or in incomplete quantity by QuVa are subject to full replacement or credit will be given for the amount invoiced provided QuVa’s Customer Service Department is notified within three (3) business days of receipt of the shipment.

(b)          Product shipments that have been damaged during shipment will be replaced or credit will be given provided damaged items are reported and appropriate documentation has been provided to QuVa’s Customer Service within three (3) business days of receipt for credit to be issued.

(c)           Customer must contact QuVa Customer Service at Customer.Service@QuVaPharma.com to determine the appropriate disposition of the damaged shipment. In the event that the Product is to be returned, the Customer will be required to complete and return to QuVa a “Return of Goods” form (download form here).

(d)          Products shipped with less than seven (7) days BUD dating at time of receipt, unless specifically agreed with Customer, are subject to full replacement or credit will be given for the amount invoiced provided QuVa’s Customer Service Department is notified within three (3) business days of receipt of the shipment.

(e)           Products that are demonstrated to not meet the agreed Product specifications of QuVa will be replaced or credit will be given for the amount invoiced provided QuVa’s Customer Service Department is notified within three (3) business days of first discovery of defect.

(f)           Products that are recalled.

For Product Return Requests, Customer should contact Customer.Service@QuVaPharma.com or 1-888-339-0874.  Customer will be required to complete and return to Supplier a “Return of Goods” form (download form here) to aid QuVa in its investigation and resolution of Customer complaints.  Under no circumstances should Product subject to a claim be destroyed by Customer without express prior permission to do so. QuVa will reimburse Customer for the reasonable costs related to the return of the Product.

Governing Law and Venue. These terms and conditions shall be governed by and construed in accordance with the law of the State of Texas. Any action under these terms and conditions shall be brought in any court of competent jurisdiction for Fort Bend County, Texas.

Assignment. A Party may not assign its rights or delegate its duties without the prior written consent of the other, which will not be unreasonably withheld, conditioned or delayed.

Non-Waiver. No waiver or failure of a Party to exercise its rights shall be deemed a waiver of any of such Party’s rights. All rights and remedies granted herein are cumulative; resort to one shall not preclude resort to any other right or remedy provided by law.

Modification or Amendment.  Modification or amendment to these terms and conditions may only by written agreement and in the event any provision herein is found to be unenforceable or invalid, such provision shall be severed and shall not affect the enforceability or validity of any other provision contained herein.