Standard Terms and Conditions – Fee For Service
The following Standard Terms and Conditions shall govern “fee-for-service” (FFS) contract chemistry (herein “Services”) provided by SYNthesis med chem (Hong Kong) Ltd and its Subsidiaries (“SYNthesis”) to Client (“Client”). Hereinafter each may be referred to as “Party” or collectively as “Parties”.
WARRANTY AND LIMIT OF LIABILITY
- SYNthesis makes no warranty, express or implied, except as set forth herein.
- SYNthesis agrees to perform the Services as explicitly defined in the SYNthesis Quotation (herein “Quote”) provided to Client.
- SYNthesis shall not be liable for any claim or breach of warranty unless such claim is submitted by Client in writing to the offices of SYNthesis within one (1) month following the date the Services giving rise to the claim were completed.
- Under no circumstances shall SYNthesis be liable to Client or any third party claiming by or through Client for any consequential, incidental or other damages, including without limitation loss of profits, business, or damage to goodwill, regardless of the foreseeability of any of the foregoing.
- SYNthesis’ liability for breach of warranty, or these Terms and Conditions or any implied or statutory warranties or any claimed to arise by operation of law shall be limited to proven direct damages in an amount not to exceed the price of the Services under which such liability arises.
- THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE WAIVED BY CLIENT.
THE SYNTHESIS QUOTATION
- After being briefed by Client, SYNthesis will provide Client a Quote detailing the scope of work, exact chemical structure (herein the “Product”), quantity, purity, timeframe, cost and all other general or specific conditions of the Services to be provided.
- Client is required to review and unconditionally accept the Quote, by way of a Purchase Order or acceptance email, prior to SYNthesis commencing the Services.
- Commencement of Services will be solely at the discretion of SYNthesis and will depend on the availability of resources.
- Client has the right to request reasonable changes and/or modifications to a Quote prior to the commencement of Services. It is understood by Client that such changes may result in increases or decreases in the price and timeline defined in the Quote, and thus a new and independent Quote may be provided to Client for acceptance.
- SYNthesis has the sole right to accept or refuse changes to an accepted Quote after commencement of the Services.
- Solely at the discretion of SYNthesis, Services will be provided through one or more SYNthesis Subsidiary;
- SYNthesis (Suzhou) Limited, with registered address at 425 Changyang Street, Suzhou Industry Park, Suzhou, Jiangsu 215123, China
- SYNthesis (Shanghai), with registered address at C-3, 735 Ziping Road, Zhoupu, Pudong New Area, Shanghai 201318, China
- Viva Biotech（Shanghai）Ltd.,with registered address at No.735 Ziping Rd, Pudong New District, Shanghai 201318, China
- Sichuan Viva Biotech Ltd., with registered address at No.259 Wenquan Rd Wenjiang District Chengdu, Sichuan 611130, China
- Jiaxing Viva Biotech Ltd.,with registered address at No.298 Zhenglong Rd, Youchegang Town, Xiuzhou District, Zhejiang 314000, China
- SYNthesis med chem (Australia) Pty Ltd, ABN: 59 166 305 111, with registered address at Bio21 Institute, 30 Flemington Road, Parkville VIC 3052, Australia
- SYNthesis med chem (UK) Limited, Company Number: 07624460, with registered address at No. 1, Mereside, Alderley Park, Cheshire, SK10 4TG, United Kingdom
- In delivering the Services, unless otherwise mutually agreed to by the Parties in writing, SYNthesis will provide Client:
- The Product, at the amount and purity defined in the accepted Quote;
- Results from Quality Control (QC) tests of the Product, defined in the accepted Quote;
- The outputs of any other general or specific conditions of the Services provided, as explicitly defined in the accepted Quote
DELIVERY OF PRODUCTS
- Shipping costs are prepaid and added to the invoice to Client. SYNthesis reserves the right to select the packaging and shipping method for the Product, which will ensure efficient tracking. Domestic orders will normally be shipped by overnight air express. International orders will normally be shipped by priority air express.
- For all orders, a) title to the goods passes to Client when the goods are placed with the shipper, and b) risk of loss of the goods passes to Client when the goods are placed with the shipper.
- On written request by Client, SYNthesis can insure the contents of the shipment with the shipper. All costs incurred by SYNthesis will be invoiced to Client.
- SYNthesis shall not be liable for any delay or damage in shipping. Any presumed liability is limited by the warranties provided in these terms and conditions.
- Items shipped to Client may be subject to import duties and import taxes, which are levied once a shipment reaches Client’s country. Client will be responsible for paying any and all additional charges required for customs clearance.
- When using the Services of SYNthesis, Client is the importer and must comply with all laws and regulations of the destination country.
- Unless otherwise specified in the Quote, the price for the Services will be invoiced to Client immediately on completion of the Services. Payment terms are net 30 days or as mutually agreed to by the Parties before commencement of the Service. Invoices are billed and payable in the currency agreed to in the Quote.
- In the event of Client’s default of payment, SYNthesis may without prejudice to any other lawful remedy defer future shipments and/or cancel any pending or future Services. Client shall be liable to SYNthesis for all costs and fees, including attorneys’ fees, which SYNthesis may reasonably incur in any actions to collect on Client’s overdue account. SYNthesis does not agree to, and is not bound by, any other terms or conditions such as terms in a purchase order that have not been expressly agreed to in writing signed by a duly authorized officer of SYNthesis.
Client is solely responsible for any applicable sales, bank charges, use, or similar tax and agree to indemnify SYNthesis for any such tax or bank charge if not properly paid by Client. Sales tax will be added when shipping to jurisdictions where SYNthesis is responsible for collecting sales tax unless the receiving party has exempt information on file with SYNthesis.
- During performance of the Services and for five (5) years thereafter, each Party will treat as proprietary and confidential all information provided by the other Party in connection with this Agreement that (i) is identified in writing at the time of disclosure as confidential, (ii) if orally disclosed, is identified in writing as confidential no later than thirty (30) days after such oral disclosure, or (iii) should reasonably be understood to be confidential by the receiving Party in light of the nature of the information and the circumstances under which is it is disclosed (the “Confidential Information”).
- Each Party will use reasonable care to avoid disclosing and will not knowingly disclose the same to any person or entity other than the receiving Party or its designated representatives, and will use such Confidential Information solely for performance hereunder.
- Excluded from all obligations of confidentiality is any information that the receiving Party can demonstrate is (i) already known to the receiving Party as evidenced by competent proof; (ii) independently developed or discovered by the receiving Party without the use of the disclosing Party’s Confidential Information, as evidenced by competent proof; (iii) in the public domain, other than through breach of this Agreement or any of the receiving Party’s confidentiality obligations to the disclosing party; or (iv) disclosed to the receiving Party by a third party not in breach of a duty of confidentiality owed to the disclosing Party.
- Without limiting the generality of the foregoing, the Product derived or developed from the Services is the Confidential Information of Client.
- A receiving Party may disclose Confidential Information of the disclosing Party to the extent required to be disclosed by law; provided that to the extent permitted by applicable law the receiving Party gives prompt prior written notice to the disclosing Party and provides reasonable cooperation with the disclosing Party’s efforts to seek confidential treatment for the Confidential Information.
- Upon the expiration or termination of this Agreement, or at any time at the disclosing Party’s request, the receiving Party shall return or, if consented to in advance by the disclosing Party, destroy, all manifestations of the disclosing Party’s Confidential Information except to the extent the receiving Party is required by law to retain copies of such Confidential Information.
- All materials owned or controlled by Client and furnished to SYNthesis for the purpose of performing the Services and all associated intellectual property rights will remain the exclusive property of Client. “Controlled” means with respect to materials and associated intellectual property rights, the ability to grant access and/or a license without violating the terms of any agreement or arrangement with any third party.
- On complete payment of all invoices payable by Client, in the currency agreed to in the Quote, SYNthesis hereby assigns to Client all right, title, and interest in the Product, whether or not copyrightable or patentable.
- Notwithstanding the foregoing, Client acknowledges that SYNthesis possesses and routinely develops certain inventions, processes, know-how, trade secrets, other intellectual property and assets, including but not limited to, methods, procedures, expertise, controls, computer technical expertise and software which have been developed by SYNthesis (collectively, the “SYNthesis Property”).
- Client and SYNthesis agree that any SYNthesis Property, improvements or unexpected discoveries thereto which are used, improved, modified or developed by SYNthesis under or during the term of this Agreement, are the product of SYNthesis’ technical expertise possessed and developed by SYNthesis prior to or during the performance of this Agreement and are the sole and exclusive property of SYNthesis regardless if such SYNthesis Property or improvements thereto are incorporated or embedded in any Product or deliverable generated or due hereunder. For the avoidance of doubt, protocols, methods, controls, SOPs, specifications, or documents (other than QC reports) that are produced by SYNthesis for the Services (collectively, “Service Instruments”) are furnished solely with respect to Services, and SYNthesis will retain all common law, statutory, ownership, and other reserved rights in such Service Instruments.
DISPOSAL OR RESALE OF ARTICLES BY SYNTHESIS
- Compounds, intermediates and reagents remaining after the Services are completed, and/or all manufacturing retains and excess Product (individually or collectively, “Articles”) will be maintained by SYNthesis in accordance with its Standard Operating Procedures or protocols, as applicable.
- At the conclusion of the Services, SYNthesis may dispose of Articles unless Client has requested, in advance of commencing the Services, that such Articles be delivered to Client. The delivery of Articles to Client shall be made at the sole risk and expense of Client.
- Should the Articles be published literature compounds, reagents, intermediates and/or compounds, which were known in the literature prior to offering the Services to Client, and thus not Client’s Confidential Information as defined by clause 7.3, SYNthesis reserves the right to market and sell those Articles directly or through its catalogue product distribution company, SYNkinase Pty Ltd.
UNEXPECTED / SCIENTIFICALLY UNREASONABLE OR OUT OF SPECIFICATION RESULT
- During the course of providing the Services, if SYNthesis observes an unexpected, scientifically unreasonable, or out of specification result, including but not limited to, issues arising in the manufacturing process or the inability to provide the required product at the Quoted purity, amount or timeframe, it will notify Client within ten (10) business days of learning and verifying such result.
- The Parties will discuss and agree on an appropriate course of action in order to successfully conclude the Services.
- If the result of an investigation into the matter indicates that an unexpected, scientifically unreasonable, or out of specification result is due in whole or in part to omission, direction, or negligence of Client, Client shall be liable to SYNthesis for the Services performed, including any retests, and materials, reagents, expenses, etc. consumed, employed, or specially obtained during the course of the laboratory investigation.
- Client is not liable to SYNthesis for unexpected, scientifically unreasonable, or out of specification results due solely to SYNthesis error, and SYNthesis shall perform a retest, or provide a refund of any payments made by Client for the Services giving rise to such unexpected, scientifically unreasonable, or out of specification results.
TERMINATION OF SERVICES
If a Client accepts a Quote for Services, and later, at Client’s convenience, postpones or terminates the Services, Client shall be liable to SYNthesis for the price of the Services initiated and any materials, reagents, and expenses consumed, employed, specially obtained, or expenses irrevocably committed for such terminated Services, and any other fees for such delay or cancellation detailed in the applicable Quote.
- Except to the extent caused by the reckless or wilful misconduct of SYNthesis, Client shall indemnify and hold harmless SYNthesis, its officers, directors, agents and employees from and against any and all losses, costs, damages and/or expenses (including, without limitation, reasonable costs of counsel), incurred by any such indemnitee as a result of or in connection with any claim by any third party 1) for injury (physical, emotional, psychological or other) or death of any person or physical damage to any property arising out of the testing, development, manufacture, sale or other use or distribution of any material or product which is the subject of the Services, or 2) alleging SYNthesis’ use of Client’s materials, or Client patent rights that are supplied to SYNthesis by Client infringes any rights (including, without limitation, any intellectual or industrial property rights) vested in any third party (whether or not Client knows or ought to have known about the same).
- SYNthesis will promptly notify Client of any claim of which it becomes aware and will cooperate with Client’s reasonable requests in connection with defence of such claim, at Client’s expense.
SYNthesis and Client shall not be held responsible for failure or delay in performance of their obligations under or in connection with the Agreement due to, but not limited to, the following: acts of God, government actions, alien attack, labour disputes, civil disturbances, power outages, fire, natural disasters, material shortages, or failure of suppliers or subcontractors because of any of the above conditions. If such delay persists for a period longer than sixty (60) days, Client may terminate the Services and shall pay SYNthesis for Services performed in compliance with the Agreement prior to receipt of the notice of termination.
Neither Party may use the other Party’s name or logo in any form of advertising, promotion or publicity, including press releases and technical reports, without the prior written consent of the other Party. This term does not restrict a Party’s ability to use the other Party’s name in filings with the Securities and Exchange Commission, FDA, or other governmental agencies, when required to do so.
Nothing in these Terms and Conditions or Quote will be construed as to create any relationship between SYNthesis and Client other than that of independent contracting parties. Neither Party shall have any right, power, or authority to assume create or incur any expense, liability, or obligation, express or implied, on behalf of the other Party.
Either Party’s failure to enforce at any time any of the provisions of the Agreement, to exercise any election or option provided herein, or to require at any time performance of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of the Agreement or any part thereof, or the right of either Party thereafter to enforce each and every such provision.
The illegality or invalidity of any provision (or any part thereof) of any applicable Quote, or these Standard Terms and Conditions shall not affect the legality, validity or enforceability of the remainder of its provisions or the other parts of such provision as the case may be.
- Any controversy, claim or dispute that may arise out of this Agreement shall first be submitted to senior management of both Parties, who shall in good faith use their best efforts to resolve said controversy, claim or dispute within sixty (60) days from the date said controversy, claim or dispute is first submitted.
- In the event that such dispute is not settled the Parties hereby agree to initiate mediation upon written notice to the other Party. On such initiation, both Parties shall be obligated to engage in a mediation proceeding under the then current Centre for Effective Disputes Resolution (CEDR) procedure for mediation of business disputes, except that specific provisions of this clause shall override any inconsistent provisions of the procedure.
- Thereafter, all disputes or claims arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the courts in Victoria, Australia to which the parties submit.
This Agreement embodies the entire understanding of SYNthesis and Client and there are no promises, terms, conditions or obligations, oral or written, expressed or implied, other than those contained in the Agreement. The Agreement supersede all previous agreements (if any) which may exist or have existed between SYNthesis and Client relating to the Services. Notwithstanding the foregoing, any previously executed Confidentiality Agreement still in effect between the Parties shall remain in full force and effect. These Terms and Conditions may only be modified by a written agreement signed by duly authorized representatives of SYNthesis and Client.