Terms and Conditions

This terms and conditions (“Terms”) are applicable to that certain [invoice/product pricing sheet/credit application] ("Sales Document") and are entered into between Mayne Pharma Inc. (“Mayne Pharma”) and you (“Buyer”). These Terms, including any attachments hereto (collectively, “Agreement”) shall constitute the complete agreement of the parties covering the subject matter herein. Buyer agrees to be bound by this Agreement.

  1. CONFLICTS/GOVERNING DOCUMENTS. Except as otherwise provided below in this Section 1, the Agreement shall constitute the complete understanding between the parties with respect to the subject matter referenced herein. Any terms and conditions contained in Buyer's proposal, purchase order, acknowledgment, or other writing, shall be null and void unless such proposal, purchase order, acknowledgement or other writing is attached by Mayne Pharma to this Agreement and/or such terms and conditions are expressly accepted and referenced by Mayne Pharma in this Agreement. Notwithstanding the foregoing, if a fully executed written agreement between Mayne Pharma and Buyer is in full force and effect with respect to the subject matter referenced herein, then the terms of such agreement shall govern and the conflicting terms of this Agreement shall be inapplicable.
  2. PRICE AND PAYMENT. Buyer shall purchase product (“Product”) from Mayne Pharma at the price(s) set forth in the Sales Document. Buyer shall pay all invoiced amounts due to Mayne Pharma within the payment period set forth on the Sales Document. Buyer shall make all payments hereunder by [wire transfer/check/[OTHER PAYMENT METHOD]] and in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Mayne Pharma for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Mayne Pharma does not waive by the exercise of any rights hereunder). Mayne Pharma shall be entitled to suspend the delivery of any Product if Buyer fails to pay any amounts when due hereunder. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Mayne Pharma, whether relating to Mayne Pharma's breach, bankruptcy or otherwise. Any sales or use taxes determined to be applicable as a result of this Agreement shall be the responsibility of Buyer.
  3. CHANGES. Prior to shipment of goods or performance of services, as applicable, Mayne Pharma may change, by providing Buyer with a written change order issued by an authorized representative, any of the following:
    1. method of shipment, packing or performance;
    2. place, time or manner of delivery or performance; or
    3. quantities.
  4. DEFAULT. Buyer will be in default, allowing Mayne Pharma to exercise all rights existing under law and in equity (including termination), if Buyer:
    1. fails to pay the Price for the Product in accordance with this Agreement; or
    2. becomes bankrupt or insolvent or makes an assignment for the benefit of creditors.
  5. TERMINATION FOR CONVENIENCE. Mayne Pharma may terminate performance under this Agreement in whole or in part upon the provision of written notice to Buyer.
  6. DELIVERY. Delivery of Product shall be made pursuant to shipping instructions and in the timeframes stipulated in the Sales Document. Unless otherwise stated in the Sales Document, Mayne Pharma shall deliver the Products FOB to the Buyer’s warehouse. Property, title and risk of loss shall pass from Mayne Pharma to Buyer when the Products have been delivered by Mayne Pharma to the common carrier. Subsequent to delivery, Buyer shall be solely responsible for compliance with all applicable law relative to further shipment of Product, including but not limited to applicable export or import laws.
  7. ACCEPTANCE. Buyer shall inspect the Product within 5 days of delivery of the Product to Buyer ("Inspection Period").
    1. Buyer will be deemed to have accepted the Products unless it notifies Mayne Pharma in writing of any nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Mayne Pharma. Mayne Pharma shall not be liable for any non-delivery or non-conforming Product for any reason unless Buyer gives written notice to Mayne Pharma of the non-delivery or nonconformance within the Inspection Period. "Nonconforming Product(s)" means only the following: (i) Product shipped is different than identified in Buyer's purchase order; or (ii) Product's label or packaging incorrectly identifies its contents.
    2. If Buyer timely notifies Mayne Pharma of any Nonconforming Product, Mayne Pharma shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Mayne Pharma. If Mayne Pharma exercises its option to replace Nonconforming Products, Mayne Pharma shall, after receiving Buyer's shipment of nonconforming Products, ship to Buyer, at Buyer's expense and risk of loss, the replaced Products to Buyer’s warehouse.
    3. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer's exclusive remedies for the delivery of Nonconforming Products. Except as provided under this Section, all sales of Products to Buyer are final and Buyer has no right to return Products purchased under this Agreement to Mayne Pharma.
  8. WARRANTIES.
    1. Mayne Pharma represents and warrants as follows: (i)) Mayne Pharma is in compliance with any applicable laws and regulations pertaining to the Products; (ii) the Products shall have been manufactured in accordance with then-current good manufacturing practice; and (iii) the Products shall be free from all encumbrances.
    2. Except as set forth specifically in Section 7.A. above, MAYNE PHARMA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, AND (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
  9. INDEMNIFICATION. Except as where caused by the negligence, fault, omission, or improper conduct by Mayne Pharma, Buyer shall defend, indemnify and hold harmless Mayne Pharma and its officers, directors, employees, agents, successors and assigns from and against any liabilities, claims, suits, actions, loss, damage, cost or expense (including reasonable attorneys’ fees and expenses) arising from any third party claim, demand, assessment, action, suit or proceeding arising or occurring as a result of Buyer’s and/or Buyer’s officers, employees, agents, subcontractors or representatives: negligence or intentional misconduct or inaction in the performance of its obligations under this Agreement; infringement of any patent, copyright, trademark, trade secret or intellectual property right; breach of any representation, warranty or covenant or failure to perform obligations hereunder; violation of any federal, state or local statute, regulation or ordinance; or failure to comply with the confidentiality obligations set forth in this Agreement.
  10. CONFIDENTIAL INFORMATION. Buyer acknowledges that any and all data, documents, material or information of any type whatsoever, in whatever form or medium, whether or not marked as "confidential" and/or "proprietary", and which could reasonably be expected to be valuable to Mayne Pharma, including without limitation, designs, blueprints, specifications, engineering data for production, or Product know-how, which is learned, created by, disclosed to or becomes known by Buyer in connection with goods or services provided under this Agreement shall be considered confidential information of Mayne Pharma (collectively, "Confidential Information"), unless otherwise agreed to in writing by Mayne Pharma, and shall be kept strictly confidential by Buyer. Buyer shall: (A) not disclose such Confidential Information to any third party, except to its agents and representatives who need to know in order to perform services or deliver goods under this Agreement and have signed confidentiality agreements with no less restrictive covenants; (B) use Confidential Information only to perform services or deliver goods hereunder; (C) not knowingly export or re-export, directly or indirectly, any Confidential Information received hereunder in violation of any government regulations, including 15 CFR Part 379 of regulations of the office of Export Administration; (D) upon termination or expiration of this Agreement, destroy or return to Mayne Pharma, upon request and at Mayne Pharma's option, all tangible Confidential Information in its possession and in the possession of any agents and representatives; and (E) protect Confidential Information received from disclosure with at least that degree of care used by Buyer in dealing with its own confidential information and Buyer shall take all reasonable steps to minimize the risk of an unauthorized disclosure of Confidential Information.
  11. PROPRIETARY RIGHTS. Mayne Pharma owns all patents, copyrights, and trade marks associated with the Products. Buyer shall not, without the written consent of Mayne Pharma in each instance use the name, trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof of Mayne Pharma in any advertisement or publication.
  12. LIMITATION OF LIABILITY.
    1. IN NO EVENT SHALL MAYNE PHARMA BE LIABLE TO BUYER, BUYER'S AFFILIATES, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOSS OF REVEUE, PROFIT, OR OPPORTUNITY ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT MAYNE PHARMA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
    2. IN NO EVENT SHALL MAYNE PAHRMA’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 THE AMOUNTS RECEIVED HEREUNDER BY MAYNE PHARMA IN THE TWELVE-MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
  13. REGULATORY REQUIREMENTS.
    1. Each party shall comply with all foreign and United States federal, state and local laws and regulations applicable to it.
    2. Buyer represents and certifies that neither it nor any person or entity employed or engaged by Buyer, including without limitation its officers, directors, employees, or agents who perform in connection with this Agreement (collectively "Personnel") is currently: (1) excluded, debarred, suspended or otherwise ineligible to participate in federal health care programs as defined in 42 U.S.C. Sec. 1320a-7b or from federal procurement or non-procurement activities as defined in Executive Agreement 12689 (collectively "Ineligible"); or (2) debarred pursuant to the Generic Drug Enforcement Act of 1992, 21 U.S.C. Sec. 335 (a), as amended, or any similar state law or regulation (collectively "Debarred") or (3) convicted of a criminal offense that falls within the ambit of 42 U.S.C. Sec 1320a-7(a), but has not yet been excluded, debarred, suspended, or otherwise declared ineligible ("Convicted").

      Buyer represents and certifies that it will not utilize any Ineligible, Debarred, or Convicted Personnel to provide any goods or services hereunder.
    3. During the course of performing Services under this Agreement, if Buyer becomes aware of an adverse event associated with use of Mayne Pharma's Product (whether or not expected or labelled), Buyer shall report the adverse event to Mayne Pharma within 1 business day using the contact information on the face of this Agreement.
  14. GENERAL.
    1. Buyer shall not, in any manner, delegate or assign its obligations, rights or interest under this Agreement without the prior written consent of Mayne Pharma. Mayne Pharma may assign its rights under this Agreement without the prior written consent of Buyer.
    2. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflict of laws rules or principles. For avoidance of doubt, the parties affirmatively agree to opt out of the UN Convention on Contracts for the International Agreement of Goods ("CISG") and CISG shall in no way apply to or govern any portion of this Agreement.
    3. The remedies reserved herein shall be cumulative and shall be in addition to all other remedies provided in law or equity. No waiver of a breach of any provision of this Agreement shall constitute a waiver of any other breach or of such provision. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term in any other jurisdiction.
    4. This Agreement and any other writing attached hereto, may not be amended or modified other than in a writing signed by both parties. Any changes to the printed terms hereof shall not be accepted unless expressly initialed and dated by both Mayne Pharma and Buyer.
    5. Neither party is liable for delays in performing under this Agreement caused by the effects of fire, strike (other than by the non-performing party’s own employees), war, terrorism, government restriction or prohibition, or other causes reasonably beyond its control and without its fault, but the party failing to perform shall use all reasonable efforts to resume performance of this Agreement as soon as feasible.
    6. The relationship of the parties is that of independent contractors. Nothing contained herein shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    7. Mayne Pharma’s performance hereunder is excused to the extent it is prevented or delayed by reason of war, acts of terrorism, civil disorders, embargoes, fires, earthquakes, storms, or acts of God (collectively, “Force Majeure Events”), the effects of which cannot be avoided by the exercise of reasonable diligence. Mayne Pharma shall not be liable to the Buyer for any nonperformance as a result of a Force Majeure Event.
    8. Any indemnity or any obligation of confidence under this Agreement is independent and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.