Manufacturing Services Terms and Conditions

These MANUFACTURING SERVICES TERMS AND CONDITIONS (the “Terms”) are applicable to any proposal or equivalent document issued by Phlow Corporation for its provision of certain manufacturing services (the “Proposal”). Phlow Corporation shall be referred to as “Supplier” throughout these Terms, while the party receiving and paying for such Services shall be referred to herein as “Company”. Company and Supplier may be referred to individually as a “Party” and collectively as the “Parties” throughout these Terms. These Terms shall constitute an integral part of the Proposal and shall be the only terms and conditions applicable thereto. Supplier hereby rejects any terms and conditions submitted by Company in any manner whatsoever (including in any Purchase Order or similar instrument) different to the Terms contained herein.

ARTICLE 1 MANUFACTURING SERVICES

1.1   During the term of this Agreement, Supplier may provide manufacturing services to Company for Products, including the supply of any required inactive raw materials used in the formulation of the Product and the containers, closures, labels, labeling, artwork, inserts and other packaging components necessary for the manufacture of the Product as finished goods (collectively, “Materials”) as specified in the Proposal mutually agreed upon between the Parties that has been attached hereto and/or in a Purchase Order issued by Company pursuant to this Agreement (“Services”). The Parties will execute a Proposal and Company will place a Purchase Order with Supplier, both of which will state the quantity of Product required by Company and the required delivery date as mutually agreed upon between the Parties. Purchase Orders shall only become a binding and enforceable obligation against Supplier after Supplier’s mutual assent and written approval In the event of a conflict between the Terms, Proposal and/or Purchase Order, the Terms shall prevail. In the event of a conflict between the terms and conditions of a Purchase Order and any Proposal, the terms and conditions of the Proposal shall prevail. The Terms together with the Proposal and/or Purchase Order shall be referred to herein as the “Agreement”.

1.2   Supplier shall manufacture, label, package, store and deliver Product to Company in accordance with all Current Good Manufacturing Practice regulations promulgated by the FDA under the FD&C Act, in effect at the time in question for the manufacture and testing of pharmaceutical materials (together, “cGMP”) (if specified in the applicable Proposal and/or Purchase Order) Applicable Laws, the specifications, this Agreement and the corresponding Proposal and/or Purchase Order. For the purposes of this Agreement, “Applicable Law” shall mean United States Food, Drug and Cosmetic Act together with any applicable United States Food and Drug Administration (“FDA”) regulations, policies and guidelines promulgated thereunder and all other laws, regulations, rules and guidelines of any governmental authority in the United States (whether Federal, State, municipal or other) pertaining to the development, manufacture, packaging, labeling, storage, import, export, distribution, marketing, sale and/or intended use of the Active Pharmaceutical Ingredients (“API”) or any other product manufactured by Supplier that is set forth on the Proposals and/or Purchase Orders to be mutually agreed upon between the Parties (together, “Products”).

1.3   Supplier shall charge Company the sourcing and handling fee set forth in the applicable Proposal and/or Purchase Order for all supplies, materials, and services acquired from a third party specifically for or on behalf of Company to satisfactorily complete Services as set forth in the Proposal and/or Purchase Unless otherwise noted in an applicable Proposal and/or Purchase Order, Supplier shall procure all raw materials used in cGMP (if specified in the applicable Proposal and/or Purchase Order) manufacture and shall use commercially reasonable efforts to maintain access to sufficient supplies of all supplies and raw materials necessary to perform the Services without interruption. Supplier shall keep Company reasonably informed on the status of all Supplier-supplied supplies and materials including promptly responding to any written Company requests with respect thereto. Alternatively, if so noted on the applicable Proposal and/or Purchase Order, Company shall supply the required materials to Supplier.

1.4   Company shall design the labeling to be used on such Product sold by Company within the United States and shall provide Supplier with the textual content of the Supplier shall provide to Company a sample of the printed labeling for the Product manufactured by Supplier for Company’s approval, such approval will not be unreasonably withheld or delayed. Company shall be responsible, with respect to the Product, for compliance of the labeling content provided to Supplier with the requirements of the FDA and Applicable Law. Once approved by Company, Supplier will not change in any manner any labeling of any Product manufactured by Supplier without the prior written consent of Company. Supplier shall label and package all Products in accordance with the respective labeling approved by Company. Company shall be responsible for all cost associated with the change of packaging including but not limited to inventory or dedicated packaging inventory.

1.5   All Product received by Company shall be subject to inspection and testing by Company in accordance with Company’s quality assurance program then in When the results of any inspection or testing indicate that any Product does not conform to the specifications, Purchase Order and/or Proposal, Company shall provide Supplier written notice thereof within ten (10) days from the receipt of such Product. Company’s failure to provide such rejection notice within the above ten (10) day period shall be deemed to be Company’s acceptance of such Product shipment.

1.6   Each Party promptly shall notify the other if any Product is alleged or proven to be the subject of a recall, market withdrawal or correction or in the event of any Product deficiency(ies) in material, workmanship and/or manufacturing process resulting from a Product flaw which directly impacts the safety and/or efficacy of the Product, or otherwise compromises the Product, in such a manner that the resulting Product is not in conformance with the requirements set forth herein and in the specifications, the applicable Proposal and/or Purchase Order (“Epidemic Failure”).

1.7   Each Product manufactured by Supplier and supplied to Company under this Agreement shall be manufactured at the facility(ies) specified in the Proposal and/or Purchase

ARTICLE 2 COMPANY’S OBLIGATIONS

2.1   Company will (a) cooperate with Supplier in all matters relating to the Services; (b) respond promptly to any Supplier request to provide any direction, information, approval, authorization or decision reasonably necessary for Supplier to perform the Services; (c) provide such Company information as Supplier may request to timely perform the Services and ensure such information is accurate; and (d) obtain and maintain all necessary licenses and consents and comply with all Applicable Laws in relation to the If Supplier’s performance is prevented or delayed by any act or omission of Company or its agents, subcontractors, consultants or employees, Supplier will not be in breach of this Agreement Purchase Order and/or any Proposal, or otherwise liable for any costs, charges or losses sustained or incurred by Company arising from such prevention or delay.

2.2   Company or its designee shall provide on time, in the right quantity and within the specifications as specified in the applicable Proposal and/or Purchase Order, any raw materials agreed to be supplied by Company (including but not limited to starting materials or excipients) and consequently, all dates quoted by Supplier for delivery and completion of the Services shall be extended in the event Company-supplied materials are delayed. Additional costs and expenses resulting from Company’s delay shall be borne by Without limiting the foregoing, Supplier will provide Company with written or oral reports as reasonably requested by Customer on the status of the Services hereunder.

2.3   Company shall be the importer of record or utilize its own customs broker for any materials being imported and shipped to Supplier. Company is responsible for ensuring appropriate documentation is in place for all material exported to another country. Any importation or exportation of any Products, including the responsibility for obtaining applicable permits, shall be Company’s responsibility and expense.

2.4   Company shall provide Supplier all necessary and relevant information concerning chemical entities developed or manufactured or otherwise handled by Supplier hereunder to ensure safe handling, storage, usage, shipment and/or disposal thereof.

ARTICLE 3 PRICE AND INVOICING

3.1   The rates, fees and/or price that Company shall pay Supplier for its performance of Services pursuant to this Agreement shall be provided by Supplier on a scope-by-scope basis in its Such rates, fees and/or prices shall be incorporated into any resulting Purchase Order issued by Company.

3.2   Notwithstanding anything herein to the contrary, price adjustments may be made by Supplier as needed, to account for (i) changes in labor and overhead as determined by the Producer Price Index (PPI) for pharmaceutical preparation manufacturing, (ii) increases in variable costs (such as energy or raw materials provided by Supplier), (iii) a process adjustment or assumption changes, and (iv) any material change in an environmental, safety or regulatory standard that substantially impacts Supplier’s cost and ability to perform the Services.

3.3   Supplier will invoice Company for the Services in accordance with the payment terms as mutually agreed upon between the Parties and as specified in the applicable Proposal and/or Purchase Order. Each invoice shall reference the Proposal(s) and/or Purchase Order(s) to which the invoice relates, the rates and/or fees of the Services and any applicable quantity and price per unit of the Materials, goods and/or Products All pricing, invoicing and payments under this Agreement and Proposal and/or Purchase Order shall be in United States Dollars (USD $). Company shall pay the undisputed portions of a properly submitted invoice thirty (30) calendar days from Company’s receipt of such invoice. If any portion of an invoice is reasonably disputed, the Parties will use best efforts to reconcile the disputed amount as soon as practicable. Supplier shall promptly inform Company of its failure to pay any undisputed amounts of any invoice and if Company fails to pay such amount within fifteen (15) days of receipt of such notice, Supplier reserves the right to (a) charge interest on any such unpaid amounts at a rate of 1.5% per month, or, if lower, the maximum amount permitted under Applicable Law, from the date such payment was due until paid; (b) suspend or cease all Services (and any other obligations to Company hereunder) until payment has been made in full; and/or (c) terminate this Agreement and the Services, or portion thereof, in accordance with Section 8.1. Company shall be responsible for all taxes imposed on the provision of Services hereunder by any federal, state, or local governmental entity.

3.4   Sales to Company of materials, goods or Products shall be delivered Ex-Works (2010 edition of the International Chamber of Commerce Official Rules for the Interpretation of Trade Terms) at Supplier’s facility (to be designated by Supplier) or as otherwise mutually agreed upon between the Parties and specified in the applicable Proposal and/or Purchase Order. Title to and risk of loss to any Products provided hereunder shall pass in accordance with the applicable delivery terms.

ARTICLE 4 REPRESENTATIONS AND WARRANTIES

4.1   Supplier represents and warrants, or covenants, as applicable, to Company that: (a) it shall obtain and maintain necessary permits, registrations and licenses required to perform the Services as specified under this Agreement, Proposal and/or each Purchase Order; (b) Supplier’s performance of the Services as contemplated hereunder will comply with all applicable Proposals, Purchase Orders, specifications and Applicable Laws; (c) Supplier’s Services shall be performed in compliance with cGMP (if specified by Company and included in the applicable Proposal and/or Purchase Order) and, in any event, with Applicable Law and the procedures and parameters set forth in this Agreement, Proposal and/or any Purchase Order; (d) To the actual knowledge of Supplier, Supplier warrants that none of Supplier’s manufacturing processes or methods employed or to be employed at any facility used to manufacture Products pursuant to the Services provided hereunder, violate or will violate or infringe upon the Intellectual Property Rights of any other natural person, corporation, unincorporated organization, partnership, association, joint stock company, joint venture, limited liability company, trust or government, or any agency or political subdivision of any government, or any other entity (collectively, “Person”); (e) Supplier has the full power, right and authority to execute and deliver this Agreement and to enter into this Agreement without the consent or approval of any third party; (f) Supplier will perform its obligations contemplated hereunder with professional personnel, qualified to perform the process procedures consistent with the technical requirements of the Agreement, the applicable Proposal and/or Purchase Order; and none of Supplier personnel to be assigned to this Agreement have or shall have been subject to debarment under the United States Generic Drug Enforcement Act or any other penalty or sanction by FDA; and (g) Products provided by Supplier pursuant to this Agreement suffer from an Epidemic Failure, Company may, at Supplier’s option, (a) replace the Products, at Supplier’s cost,

(b) require that the Products be replaced by Supplier, at Supplier’s costs, or (c) return all of the Products to Supplier for a refund or credit at the pro rata Proposal and/or Purchase Order price to the applicable open invoice, and Supplier shall immediately pay Company a refund or credit the applicable open invoice, as the case may be, for such returned Products.

4.2   Company represents, warrants and covenants to Supplier that (a) Company is a corporation in good standing under the laws of the jurisdiction of its organization and authorized to do business wherever necessary to fulfill the terms and conditions of this Agreement; (b) Company has the full power and authority to execute and deliver this Agreement and perform its covenants, duties and obligations described in this Agreement without the consent or approval of any third party; (c) to the best of its knowledge and information, no claim has been asserted that the importation, manufacture, use, offer for sale, or sale of Product infringes a valid claim under any patent; (d) to the actual knowledge of Company, Company warrants that none of the Company materials and/or manufacturing formulation, processes, or methods used to manufacture the Product violates or infringes upon Intellectual Property Rights of any other Person; (e) this Agreement is the valid, legal and binding obligation of Company, enforceable in accordance with its terms; (f) Company will comply in all material respects with all laws, rules and regulations in effect from time to time applicable to the marketing and distribution of the Products; and (g) Company will perform its obligations contemplated hereunder with professional personnel, qualified to perform the process procedures consistent with the technical requirements of this Agreement.

4.3   EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON THE PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY DISCLAIMED AS TO ANY ASPECT TO THIS AGREEMENT AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON THE PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT.

ARTICLE 5 INDEMNIFICATION

5.1   Supplier shall indemnify, defend and hold harmless Company, its Affiliates and their respective employees, servants and agents (“Company Indemnitees”) against any and all claims, losses, damages and liabilities, and other expenses, including reasonable attorney’s fees, that arise out of or result from (a) any defect in the Product supplied by Supplier hereunder, (b) the breach of a representation, warranty or covenant hereunder by Supplier or (c) any grossly negligent or intentionally wrongful act or omission by Supplier in connection with its performance of the Services hereunder. For the purposes of this Agreement, “Affiliate” shall mean, with respect to either Party, all entities which, directly or indirectly, are controlled by, control or are under common control with such For purposes of this definition, the word “control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, including through ownership of more than fifty percent (50%) of the voting shares or interest of an entity.

5.2   Company shall indemnify, defend and hold Supplier, its Affiliates and their respective officers, directors, employees and agents (“Supplier Indemnitees”) harmless against all claims, losses, damages, liabilities and other expenses, including reasonable attorneys’ fees, that arise or result from (a) the breach of any representation, warranty or covenant hereunder by Company, (b) any grossly negligence or intentionally wrongful act or omission in the in the design or development of the Product; (c) any grossly negligent or intentionally wrongful act or omission by Company in connection with the marketing, distribution or sale of the Product in the United States, or (iv) Company’s failure to fully conform to all Applicable Laws which affect the Products, their use, or any part thereof.

5.3   Any person that intends to claim indemnification under Sections 1, 5.2 or 5.4 (the “Indemnitee”) hereof shall as soon as practicable notify the indemnifying Party (the “Indemnitor”) in writing of any claim, lawsuit or other action in respect of which the Indemnitee, or any of its directors, officers, employees, agents and Affiliates intend to claim such indemnification. The Indemnitor shall have the right to control the defense or settlement of such claim, lawsuit or other action with counsel of its choice. The Indemnitor shall not be responsible for any legal fees or other costs incurred other than as provided herein. The Indemnitor shall not have indemnification obligations with respect to any claim or demand which is settled by the Indemnitee without the prior written consent of the Indemnitor. The Indemnitee shall cooperate fully with the Indemnitor and its legal representatives in the investigation and defense of any claim, lawsuit or other action covered by this indemnification, including, without limitation, upon reasonable notice, by having any of its employees, officers, directors, agents and other representatives testify when necessary, and on reasonable notice making available to Company as necessary all relevant records, specimens, samples and other information in its possession. The Indemnitee shall have the right, but not the obligation, to be represented by counsel of its own selection and at its own expense.

5.4   EXCEPT FOR LIABILITY FOR INDEMNIFICATION, INFRINGEMENT, LIABILITY FOR BREACH OF CONFIDENTIALITY OR FRAUD, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THIS AGREEMENT, REGARDLESS OF (A) WHETHER THE DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED TO THE CONTRARY HEREIN, SUPPLIER’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON- PERFORMANCE OF THE SERVICES, WHETHER UNDER CONTRACT OR AT LAW, UNDER STRICT LIABILITY OR NEGLIGENCE IN ANY FORM, WHETHER TERMINATED OR NOT, SHALL BE LIMITED TO THE APPLICABLE TOTAL PROPOSAL AND/OR PURCHASE ORDER VALUE AND COMPANY SHALL INDEMNIFY SUPPLIER FROM ALL AMOUNTS AND LIABILITY IN EXCESS OF THE STATED LIMITATION.

ARTICLE 6 CONFIDENTIALITY

6.1   The information shared under this Agreement is confidential information subject to the Confidentiality and Non-Disclosure Agreement between the Parties as referenced in the Proposal attached hereto.

ARTICLE 7 INTELLECTUAL PROPERTY

7.1   “Intellectual Property Rights” shall mean all intellectual property and proprietary rights of any nature or kind, anywhere in the world, whether protected, created or arising under any Applicable Law, and all worldwide common law, statutory, and other rights in, arising out of, or associated therewith, including the trademarks, service marks, trade dress, logos, copyrights, rights of authorship, inventions, patents, rights of inventorship, moral rights, rights of publicity and privacy, trade secrets, whether or not such rights are registered or perfected, the rights under unfair competition and unfair trade practices laws, and all other intellectual and industrial property rights related thereto.

7.2   Nothing in this Agreement shall affect the ownership of any works, inventions, discoveries, ideas, processes, formulas, source and object codes, data, programs, know- how, developments, designs, techniques and improvements, and other intellectual property that were conceived, written, created, made, learned, reduced to practice, discovered, developed or generated by the applicable party, whether alone or jointly with others, prior to the effective date of the Proposal (collectively, “Background Technology”), and all Intellectual Property Rights therein.

7.3   Expressly excluding any Confidential Information of Supplier and Supplier’s Background Technology, Company will own (a) all data and written reports arising out of the Services and all chemical entities supplied by Company or prepared for Company in accordance with this Agreement, and (b) any patent or other Intellectual Property Rights resulting from the performance of the Services related to the Products using any information supplied by or on behalf of Company to Supplier, or indicated as a deliverable in the Proposal. Supplier shall assign and hereby assigns and conveys to Company from the moment of creation all of Supplier’s right, title and interest in and to all information and data relating to the Products, including but not limited to formulae, methods of manufacture, product descriptions, test methods, validation of test methods, specifications, and all other supporting documentation, data and reports developed or acquired by Supplier or its Affiliates during the term hereof in connection with the Services, including all enhancements, improvements and derivatives thereof, and to all Intellectual Property Rights therein; provided, however, that Supplier shall own, and continue to own and possess, all right, title and interest in and to Supplier Background Technology that may be contained in therein.

ARTICLE 8 TERM AND TERMINATION

8.1   Either Party may terminate the Services thirty (30) days after the non-breaching Party provides notice to the breaching Party of its material breach of any term or condition of this Agreement, unless the breaching Party cures such breach before the expiry of the aforementioned thirty (30) day period; or Supplier may terminate Services for Company’s non-payment of any undisputed portion of a properly submitted invoice fifteen (15) days from Supplier’s notice of such failure to If either Party shall (a) become bankrupt or insolvent, (b) file for a petition thereof, (c) make an assignment for the benefit of creditors, or (d) have a receiver appointed for its assets, which appointment shall not be vacated within sixty (60) days after the filing, then the other Party shall be entitled to terminate this Agreement forthwith by written notice to such Party.

8.2   Either Party may terminate the Services, or portion thereof, and/or this Agreement for any reason upon thirty (30) days’ prior written notice to the other Party.

8.3   In the event of termination (a) Supplier shall stop its performance of the Services and (b) each Party shall return to the other Party all such other Party’s property (including Confidential Information and Intellectual Property) in its possession, except to the extent required to be retained by law or to comply with such Party’s continuing obligations

8.4   If either Party terminates the Services, or portion thereof, for its convenience, Company shall pay Supplier for any unpaid amounts owed to Supplier prior to such termination, the rates and/or fees specified in the applicable Proposal and/or Purchase Order for any Services performed prior to such termination (including any completed Products), the price for any Materials and/or goods ordered or utilized by Supplier pursuant to its performance of the Services prior to such termination and all direct and documented costs incurred by Supplier due to such In the event Company terminates the Services, or portion thereof, for its convenience, in addition to the aforementioned remedies, Company shall pay to Supplier a termination fee to be determined by Supplier on a scope-by-scope basis.

8.5   If Company terminates the Services due to Supplier’s default as described under Section 1, Company shall pay Supplier the amounts owed to Supplier prior to such termination, for all Services in progress prior to the date of termination and for any materials, goods and/or products ordered and/or utilized by Supplier pursuant to its performance of the Services prior to such termination. If Supplier terminates the Services due to Company’s default as described under Section 8.1, Company shall pay Supplier the amounts described in Section 8.4.

ARTICLE 9 MISCELLANEOUS

9.1   All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing and shall be (as elected by the person giving such notice) hand delivered by messenger or courier service, sent by facsimile (with confirmation received of recipient’s number) to the number set forth in the Proposal and/or Purchase Order, or mailed by registered or certified mail (postage prepaid), return receipt requested, or delivered by overnight delivery service, addressed to the contact as specified in the Proposal and/or Purchase Each such notice shall be deemed delivered (a) on the date delivered if by personal delivery (including by an overnight delivery service, with proof of delivery), (b) on the date telecommunicated if by facsimile (with confirmation of receipt), and (c) on the date upon which the return receipt is signed or delivery is refused, as the case may be, if mailed. By giving to the other Party written notice thereof as provided in this Section 9.1, the Parties and their respective successors and permitted assigns shall have the right from time to time to change their respective addresses.

9.2   The inability of any Party to commence or complete its obligations hereunder by the dates herein required resulting from delays caused by strikes, insurrection, acts of God, war, acts of terror, emergencies, or other causes beyond the Party’s reasonable control which shall have been timely communicated to the other Party, shall extend the period for the performance of the obligations for the period equal to the period(s) of any such delay(s) and shall not be cause for termination this Agreement; provided that such Party shall continue to perform to the extent feasible in view of such Force Majeure; and provided further, that if such Force Majeure shall continue for a period of thirty (30) consecutive days, the Party that is not subject to the Force Majeure event shall have the right to terminate this Agreement and/or Services, or portion thereof, upon written notice to the other, pursuant to Section 2.

9.3   Each Party shall obtain and keep in force during the Services product liability insurance covering such occurrence of bodily injury and property damage with a well-established insurance carrier that generally does business in the United States and is reasonably acceptable to the other Party for all claims in an amount of not less than $10,000,000 USD combined single limit for such year. Each Party shall have the right to request from the other Party certificates of insurance and shall require at least thirty (30) days written notice to such Party prior to any cancellation, nonrenewal or material change in coverage.

9.4   Neither Party may assign or transfer its rights and obligations under this Agreement without the express written consent of the other Party, which consent may be withheld or given in the other Party’s sole reasonable discretion; provided, however, that this Agreement may be assigned to a successor in interest of substantially all of the assets of a Party, by way of merger, consolidation or asset purchase if the successor in interest agrees in writing to be bound by the terms and conditions of this Agreement. Any permitted assignment shall not relieve the assigning Party of any of its obligations under this Agreement and the assigning Party shall be liable for any failure of its assignee to comply with the provisions of this Agreement. Subject to the foregoing, this Agreement be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.

9.5   Any representation, warranty, covenant, term or condition contained herein which may legally be waived, may be waived, or the time of performance thereof extended, at any time by the Party hereto entitled to the benefit as evidence in writing. No failure by any Party to take any action against any breach or default by another Party shall constitute a waiver of the former Party’s right to enforce any provision hereof or to take action against such breach or default of any subsequent breach or default by such other Party.

9.6   This Agreement and the attachments hereto and made a part hereof, contain every obligation and understanding between the Parties relating to the subject hereof and merges all prior discussions, negotiations and agreements, if any, between them, and none of the Parties shall be bound by any conditions, definitions, understandings, warranties or representations other than as expressly provided or referred to herein.

9.7   In the event that any one or more of the provisions contained in this Agreement shall be declared invalid, void or unenforceable, the reminder of the provisions of this Agreement shall remain in full force and effect, and such invalid, void or unenforceable provision shall be interpreted in such country in a manner which accomplishes, to the extent possible, the original purpose of such provision.

9.8   The termination of the Services shall not relieve Company of its obligation to pay any payments due to Supplier under the terms of this Agreement which have accrued prior to the effective date of such termination. Notwithstanding anything to the contrary that may be contained herein, in the event of the termination or expiration of this Agreement, the provisions of Articles 4-9 and any other clauses which is implied to survive the termination or expiration of this Agreement, shall survive and continue in full force and

9.9   This Agreement shall not constitute or be construed as creating a partnership or joint venture between Company and Supplier, and neither Party shall be liable for any debts or obligations of the other Party. Neither Party shall in any way be considered as being an agent or Representative of the other Party in any dealings with any third party, and neither Party may act for, nor bind, the other Party in any such dealings.

9.10   Neither Party may use the name of the other Party for any advertisement, publicity or any other reason unless such use has been approved in writing by the other Party prior to use or publication.

9.11   This Agreement shall be governed by and shall be construed in accordance with the law of the State of New York.

9.12   Any dispute, controversies, or difference which may arise between the Parties hereto, out of or in relation to or in connection with this Agreement, or for the breach thereof, shall be amicably solved by both Parties If the Parties hereto fail to do so, then such matter shall be finally settled under the Rules of Arbitration of the American Arbitration Association (“AAA”), by a single arbitrator appointed in accordance with said Rules. The arbitration shall be conducted in English. Such arbitration shall be held in New York, New York. The fees and expenses of the arbitrator and AAA administrative expenses shall be split equally between the Parties; provided that the arbitrator shall apportion such fees and expenses (and the reasonable expenses of the successful Party) pro rata in proportion to the success of each Party in the arbitrator’s final ruling. Judgment upon the award may be entered into any court having jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The provisions of this provision shall not apply in the event any claim for which the remedy sought is an injunction or other equitable relief, in which event the parties may bring a claim in any court of competent jurisdiction.