1. ENTIRE AGREEMENT
The VANRX quotation (the “VANRX Quotation”) including any manufacturing specifications expressly set out or incorporated by reference in that quotation, these VANRX Terms and Conditions (“Conditions”) and all attachments thereto constitute an offer to sell and will together with the Buyer’s Purchase Order (the “Buyer’s PO”) constitute the agreement (this “Contract”) between VANRX Pharmasystems Inc. (“VANRX”) and the Buyer with respect to all services, products and parts specified therein to be furnished to the Buyer by VANRX (hereinafter called “VANRX Product”). Manufacturing specifications (“Specifications”) provided in writing by VANRX and approved by the Buyer in accordance with the VANRX Quotation following the commencement date of this Contract are hereby expressly incorporated into and subject to this Contract, The VANRX Quotation supersedes all prior correspondence, quotations and other communications, either oral or written submitted by VANRX or the Buyer. Issuance of the Buyer’s PO or other document purporting to accept the VANRX Quotation will be deemed to accept these Conditions, to the exclusion of any terms which may be printed on the reverse of the Buyer’s PO form or otherwise are included in or accompany Buyer’s PO other than quantities of each item or option. Notwithstanding any provision to the contrary herein, this Contract will be deemed to be accepted upon VANRX’s notification, by mail or by means of any electronic transmission where the communication can be printed on paper, to the Buyer that the Buyer’s PO has been received and finally accepted by VANRX. For all intents and purposes, this Contract will be deemed to be an agreement formed in British Columbia, Canada. The failure of VANRX to object to any provision in conflict with these Conditions, however such provision may be communicated to VANRX, shall not be construed as a waiver by VANRX of the provisions hereof nor of the acceptance of such provision. In the event of a conflict in the terms and conditions of the documents forming the Contract, the following priority will apply: (1) these Conditions; (2) the VANRX Quotation, including any Specifications if provided therein, (not including these Conditions); and (3) the Buyer’s PO.
2. PAYMENT AND TAXES
The Buyer will pay VANRX for the VANRX Product in the amounts and at the time specified in the VANRX Quotation. All amounts are denominated in United States of America (U.S.) dollars and the Buyer will pay all such amounts in lawful money of the United Stated unless expressly agreed otherwise. Interest on all late payments and any other sums due to VANRX under this Contract will be charged at the rate of 12% per annum, or the maximum allowed in the jurisdiction of this Contract if less, until said payments are received by VANRX. The prices quoted by VANRX are exclusive of all applicable federal, state/provincial or local sales, use, excise, value added, or other similar taxes. The Buyer will pay the gross amount of any present or future sales, use, excise, value added, or other similar tax applicable to the price, sale or delivery of any VANRX Product or services furnished hereunder or to their use by the Buyer or VANRX. If the Buyer is exempt from the payment of any such taxes, the Buyer will furnish VANRX with evidence satisfactory to VANRX of exemption from any such taxes acceptable to the taxing authorities. The Buyer will assess and remit any applicable tax to taxing authorities not otherwise invoiced by VANRX.
3. CHANGE ORDERS
This Contract may only be changed in writing executed by authorized representatives of the Buyer and VANRX. Any changes to the Specifications or the VANRX Quotation will be documented in a written change order executed by authorized representatives of VANRX and the Buyer in order to become effective (each a “Change Order”). To the extent applicable, the Specifications and the VANRX Quotation will be deemed to be amended in accordance with a Change Order executed by both VANRX and the Buyer, including any adjustments to the contract price, the estimated delivery schedule and any other terms and conditions amended by the Change Order.
4. DELIVERY, TITLE AND RISK OF LOSS
As noted above, delivery dates specified are estimated dates and are dependent upon a number of factors, including the co-operation of Buyer to provide data, materials, decisions and any required approvals on a timely basis. Unless otherwise specified in the VANRX Quotation, delivery will be made to the Buyer CPT at the premises of the Buyer. VANRX will not be liable for, nor will VANRX be in breach of this Contract as a result of, any failure by VANRX to meet any estimated delivery dates. The Buyer will be responsible for obtaining and paying for any insurance or similar charges relating to the transportation and shipment of the VANRX Product. Notwithstanding that the VANRX Product will be shipped CPT, except as otherwise expressly provided in the VANRX Quotation, all freight transportation, shipping, storage, import duty, brokerage, handling, demurrage, or similar charges and any export or other special packing or special transportation charges will be in addition to the Contract Price set out in the VANRX Quotation or Buyer’s PO and will be payable by the Buyer. If such charges are specifically shown as a separate item in the VANRX Quotation and stated to be included in the Contract Price, any increase in rates or costs becoming effective after the date of the VANRX Quotation will be for the account of and responsibility of the Buyer. Risks of loss or damage will pass to the Buyer upon the VANRX Product being taken in charge by the carrier at VANRX’s facility, but title to the VANRX Product will not pass to the Buyer until payment has been received in full (except, for clarity, title to software and other intellectual property rights in the VANRX Product or any services provided by VANRX will not transfer to the Buyer at any time).
5. PROPERTY RIGHTS & SOFTWARE LICENSES
VANRX retains title to all software (including automation technology) furnished with any VANRX Product. The Buyer will use such software only in conjunction with the use or operation of such VANRX Product and in accordance with applicable instructions and manuals furnished by VANRX. The Buyer will not copy, modify, make any derivative work based upon, publish or distribute any such software. Further, the Buyer will not reverse engineer, decompile or attempt to discover or recreate any source code to any such software.
Without limiting the foregoing, all software (including all automation technology) and intellectual property and other proprietary rights comprised in, or otherwise included with, the VANRX Product and any services provided by VANRX pursuant to this Contract, and all related technology and documentation provided or disclosed by VANRX to Buyer will be considered proprietary to VANRX and will be protected as the confidential information of VANRX (the “VANRX Confidential Information”). Except as otherwise authorized by VANRX in writing, the Buyer will use VANRX Confidential Information solely in connection with the VANRX Product and solely for the purposes for which it is disclosed by VANRX, will not disclose VANRX Confidential Information to any third party and will take appropriate steps to protect VANRX Confidential Information from any unauthorized use or disclosure. Such information will remain the exclusive property of VANRX and VANRX will retain all rights of ownership. If requested by VANRX, the Buyer and VANRX will enter into an appropriate Confidentiality / Non-Disclosure Agreement prior to start of work. No rights are granted or implied to the Buyer to use any such VANRX Confidential Information except as may be specifically agreed to in writing by VANRX.
6. LIMITED WARRANTY FOR VANRX PRODUCTS
VANRX warrants that, at the time delivered by VANRX to the Buyer (or, in the case of a VANRX Product referred to in (a) below, upon the date of approval for the Site Acceptance Test (as set out in the VANRX Quotation or, if not set out therein, in Article 12(C) of these Conditions), the VANRX Product will be free from defects in workmanship and material and will conform to the Specifications as follows:
(a) For a VANRX Product that is identified in the VANRX Quotation as a “Machine” (including any equipment incorporated into the “Machine” at the time of delivery of the Machine and identified as an “Option” in the VANRX Quotation) – a period of twelve (12) months from the date of Site Acceptance Test approval (as evidenced by written approval executed by VANRX and Buyer confirming that the VANRX Product conforms to the Specifications) of the VANRX Product in the Buyer’s plant as described herein or fifteen (15) months from the date Factory Acceptance Test approval (as evidenced by written approval executed by VANRX and Buyer confirming that the VANRX Product conforms to the Specifications), whichever occurs first.
(b) For a VANRX Product that is identified in the VANRX Quotation as “Consumables” – until the expiry of the shelf life, expiry date or use-by date (or similar) of the VANRX Product as stated on the packaging or materials delivered by VANRX with the particular VANRX Product, or if no such date is specified for the VANRX Product, a period of twelve (12) months from the date of shipment by VANRX to the Buyer of such VANRX Product from VANRX’ facility (or other point of shipment designated by VANRX).
(c) For a VANRX Product that is identified in the VANRX Quotation as “Accessories”, “Change Parts” or “Spare Parts” (excluding services) or any other VANRX Product not included in (a) or
(b) above – a period of twelve (12) months from the date of shipment by VANRX to the Buyer of such VANRX Product from VANRX’ facility (or other point of shipment designated by VANRX).
Upon prompt notification from the Buyer of any failure of the VANRX Product to conform to this warranty during the warranty period, and provided the VANRX Product has been properly installed, maintained and operated in accordance with VANRX recommended procedures and provided that such failure is not as a result of any Design Change (as defined in Article 12(A) of these Conditions), VANRX will make repairs, adjustments, or replacements to the defective part(s) at VANRX’ option. The foregoing represents the sole and exclusive remedy for the Buyer and the sole and exclusive liability for VANRX. The Buyer will maintain accurate and complete records regarding equipment operation and maintenance and service procedures performed on the VANRX Product. The Buyer agrees to return the defective part to VANRX at the Buyer’s expense. VANRX will return corrected or replacement parts to the Buyer’s plant. The warranty provided hereunder does not include the following: a) any work external to the VANRX Product; b) maintenance, connection or from accident, neglect, misuse, failure of recommended or customary environmental conditions to be met, or from repairs performed by persons other than VANRX’ personnel or authorized contractors; c) relocating the VANRX Product or damage caused by relocation; d) upgrades to or other modifications of the VANRX Product not done by VANRX’ personnel or authorized contractors, including without limitation, any software or hardware modifications thereto, or the use of any VANRX Product with any other hardware or software not furnished by VANRX pursuant to this Contract; e) any work for cosmetic purposes; f) removal of any device not furnished by VANRX; g) repair of damage by any cause beyond VANRX’ reasonable control; h) consumable items and wear parts, such as but not limited to belts, bulbs, lamps, fuses, o-rings, filters, printer ribbons or cartridges, lubricants, solvents or chemicals, which by their nature require periodic replacement; i) repair of damage resulting from the use of the VANRX Product in a manner or configuration other than as specified in the VANRX Product operation manual and other documentation provided by VANRX; and j) failure by the Buyer to operate and maintain the VANRX Product with qualified personnel.
7. LIMITED WARRANTY FOR VANRX SERVICES
VANRX represents and warrants that VANRX will perform all services that are the subject of a separate line item in the VANRX Quotation in a professional, careful and workmanlike manner. The foregoing warranty for services provided by VANRX will be for thirty (30) days from the date of completion of the particular service. If during the foregoing warranty period the Buyer notifies VANRX that the services performed by VANRX do not adhere to this Contract, VANRX will, at VANRX’ option, either promptly undertake all necessary remedial actions at its own cost with respect to such services or refund to the Buyer the amount paid by the Buyer for such services.
8. EXCLUSION OF ADDITIONAL WARRANTIES
EXCEPT AS EXPRESSLY SET OUT IN ARTICLES 6, 7 AND 12(D) OF THESE CONDITIONS, VANRX DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE VANRX PRODUCT, SERVICE OR ANY OTHER PERFORMANCE OF OBLIGATIONS PURSUANT TO THE CONTRACT INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. MAINTENANCE OR REPAIR SERVICES FOR VANRX PRODUCT NOT UNDER WARRANTY
If VANRX provides maintenance or repair services requested by the Buyer not covered under the above limited warranty, then unless VANRX and the Buyer enter into a separate service contract for such services, such maintenance and repair services and any related deliverables will constitute services and deliverables provided under, and will be subject to, the conditions of this Contract and will be paid by the Buyer to VANRX at the then current VANRX standard service rates for standard working hours plus out of pocket expenses. Standard working hours will include travel time. Where overtime hours are required, overtime premium charges will also be charged to and paid by Buyer to VANRX. Unless otherwise specified by VANRX at the time those services are requested by the Buyer, invoicing terms will be net thirty (30) days at the time such services are provided by VANRX. The provision by VANRX of such services will not expand VANRX’ liability under this Contract for any VANRX Product to which such services may relate.
10. INSTALLATION, TRAINING AND OTHER SERVICES
Installation, training and other services related to the VANRX Product are not included in the quoted price, unless specifically shown as a separate item in the VANRX Quotation. Services, including assistance with installation of, and training on the use of, the VANRX Product, may be provided to the Buyer upon request if mutually agreed upon by VANRX. Unless specifically shown as a separate item in the VANRX Quotation, such services will be charged to the Buyer at the then current VANRX standard service rates for standard working hours plus out of pocket expenses. Standard working hours will include travel time. Where overtime hours are required, overtime premium charges will also be charged to the Buyer. Unless otherwise specified by VANRX at the time the services are requested by the Buyer, invoicing terms will be net thirty (30) days at the time such services are provided by VANRX. The provision by VANRX of such services will not expand VANRX’ liability under this Contract for any VANRX Product to which such services may relate.
11. EXCUSABLE DELAYS
VANRX will use reasonable commercial efforts to meet the milestone and delivery date(s) set out in the VANRX Quotation or Buyer’s PO but those dates are estimates only and VANRX will not be liable for delays in delivery or performance, or for failure to manufacture, deliver or perform, nor will the Buyer be entitled to terminate this Contract, by reason of any delay in meeting those dates, including due to:
(i) a cause beyond VANRX’ reasonable control;
(ii) an act of God, act of a public enemy, compliance with laws, governmental acts or regulations, fire, accident, unusually severe weather, act of civil or military authority, Governmental priority, strike or other labour disturbance, flood, epidemic, war, riot, delay in transportation or car shortage, delays in delivery or performance by third party equipment suppliers; or
(iii) acts of the Buyer including, failure of the Buyer to supply to VANRX in a timely manner with all necessary information, required sample parts or other specified items required by VANRX to design, manufacture, test and install the VANRX Product, failure or delay by the Buyer to approve or reject proposed design changes, changes of scope, design or specification made by the Buyer which result in additional time being required to design, manufacture, test and install the VANRX Product; failure or delay by the Buyer to release to VANRX those portions of the Buyer’s plant required by VANRX for installation of the VANRX Product; interference by the Buyer or the Buyer’s trades during installation; failure or delay of the Buyer to advise VANRX of required equipment safety or guarding changes within five (5) days of design review meeting; or failure of the Buyer to meet its obligations under the VANRX Quotation, the Buyer’s PO or these Conditions, including timely payment to VANRX of amounts owing thereunder.
VANRX will notify the Buyer promptly of any material delay that VANRX expects will jeopardize its ability to meet the target delivery dates set out in the VANRX Quotation or the Buyer’s PO and will specify the revised estimated date(s) to meet any milestone or deliver the VANRX Product as soon as practicable.
In the event of any delay arising as contemplated in (iii) above, if VANRX incurs additional cost or expense as a result of that delay, the Buyer will pay VANRX compensation for the costs actually incurred by VANRX by reason of such delay, including carrying charges, transportation charges, storage charges, travel charges, personnel charges and reasonable overhead and profit thereon.
12. TERMS APPLICABLE ONLY TO VANRX MACHINE PURCHASES
Where the VANRX Product is designated on the VANRX Quotation as a “Machine”, the following additional terms will apply in respect of that particular VANRX Product included in the VANRX Quotation:
(A) DESIGN CHANGES
Buyer agrees to follow VANRX’s procedures regarding the processing of design changes to the VANRX Product and will ensure that all changes are properly approved by Buyer’s authorized personnel without delay. The Buyer is responsible and will pay VANRX all increased costs, including overheads and profit thereon due to changes requested by Buyer in design or specifications (collectively, “Design Changes” and each a “Design Change”). Any Design Change must be documented in a Change Order signed by VANRX and the Buyer in order to become effective.
(B) EQUIPMENT SAFETY
VANRX will build the VANRX Product to comply with VANRX’ interpretation of applicable (OSHA or CSA) safety standards. VANRX will review equipment safety including guarding designs with the Buyer at a design review meeting with the intent to maximize operator safety, particularly with respect to all pinch points and moving parts. Buyer will advise VANRX of any required equipment safety or guarding changes no later than five (5) days following the date of such design review meeting. Unless provided for in the Specifications, if the Buyer requests deviation from VANRX’s interpretation of the applicable safety standards, this will be considered a Design Change.
(C) FAT AND SAT
Each of VANRX and the Buyer shall perform their obligations in respect of the Factory Acceptance Test (FAT) and Site Acceptance Test (SAT) of the VANRX Product as set out in the VANRX Quotation or, if not set out therein, as follows:
(i) FAT – “Factory Acceptance Test” or “FAT” means a test of the VANRX Product that is performed at VANRX’ site in accordance with an FAT plan provided by VANRX to the Buyer for the particular VANRX Product referenced therein, or as otherwise mutually agreed upon in writing in the VANRX Quotation. Such plan shall be prepared and signed-off by both parties, each acting reasonably, prior the commencement of the FAT. VANRX will advise the Buyer at least ten (10) days prior to any FAT of the VANRX Product, and must allow representatives of the Buyer to attend and participate in such FAT of the VANRX Product. Upon successful completion of the FAT in accordance with the FAT plan, the Buyer and VANRX, each acting reasonably, will both sign a document evidencing final acceptance of the FAT.
(ii) SAT “Site Acceptance Test” or “SAT” means a test of the VANRX Product that is performed at the Buyer’s site in accordance with a SAT plan provided by VANRX to Buyer for the particular VANRX Product referenced therein, or as otherwise mutually agreed upon in writing in the VANRX Quotation. Such plan shall be prepared and signed-off by both parties, each acting reasonably, prior the commencement of the SAT and shall include a final punch list of all open and pending items including those from FAT and SAT. The Buyer and VANRX will coordinate a mutually agreeable time (to be within thirty (30) days after delivery of the VANRX Product to the Buyer or such other time as may be agreed in writing between the Buyer and VANRX) for the conduct by the Buyer of the SAT and the Buyer will permit representatives of VANRX to be present during the conduct of the SAT. Upon successful completion of the SAT in accordance with the SAT plan, the Buyer and VANRX, each acting reasonably, will both sign a document evidencing final acceptance of the SAT.
(D) PATENT INFRINGEMENT INDEMNITY
VANRX will indemnify the Buyer for any third party claim that the VANRX Product infringes any third party’s valid Canadian or United States patent (a “Claim”), subject to the Buyer providing prompt written notice of any such Claim. VANRX will pay all damages and costs finally awarded against the Buyer due to such infringement. At VANRX’ option, VANRX may, but will not be obligated to, assume the defence of any Claim. In such event, the Buyer will provide to VANRX all reasonably necessary authority, information and assistance for the defence of such Claim. In no event will the Buyer settle any Claim without the prior written approval of VANRX.
In case the VANRX Product is held in such suit to constitute an infringement of any valid third party’s Canadian or United States patent and its use by the Buyer is enjoined by a court of competent jurisdiction, VANRX will, at its expense and VANRX’ option, either (i) procure for the Buyer the right to continue to use the VANRX Product, (ii) replace the infringing portion (or, at VANRX’ option, the entire VANRX Product) with a non-infringing product or part, or modify same so it becomes non-infringing, or (iii) require the Buyer to deliver and transfer title to VANRX of, at VANRX’ option, the infringing portion of the VANRX Product or the entire VANRX Product and upon receipt of such VANRX Product or portion thereof VANRX will then refund the purchase price of the infringing portion of the VANRX Product (less reasonable depreciation for any period of use based on a five (5) year amortization schedule) and any transportation costs separately paid by the Buyer.
This Article 12(D) will not apply to: (i) any VANRX Product or part which is modified other than by VANRX or manufactured to the Buyer’s design or specifications; (ii) any product of a third party as specified by the Buyer incorporated in the VANRX Product; (iii) the use of any VANRX Product furnished to the Buyer in combination with other products not furnished by VANRX, unless the VANRX Product, per se, infringes the asserted patent; or (iv) any infringement relating to Buyer’s prescribed manufacturing processes. As to any such excluded product or part thereof, VANRX assumes no liability whatsoever, including with respect to patent infringement, and the Buyer will hold VANRX harmless against any infringement claim arising therefrom.
13. LIMITATIONS OF LIABILITY AND REMEDIES
IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL VANRX OR ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE VANRX PRODUCT OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT EQUIPMENT, DOWN TIME COSTS, OR CLAIMS OF BUYER’S CUSTOMERS FOR SUCH DAMAGES. IF THE BUYER TRANSFERS TITLE TO OR LEASES THE VANRX PRODUCT TO ANY THIRD PARTY, THE BUYER WILL OBTAIN FROM SUCH THIRD PARTY A PROVISION AFFORDING VANRX AND ITS SUPPLIERS AND SUBCONTRACTORS THE PROTECTION OF THE PRECEDING SENTENCE. ARTICLE 12(D) OF THESE CONDITIONS STATES THE ENTIRE LIABILITY OF VANRX FOR PATENT INFRINGEMENT BY THE VANRX PRODUCT OR ANY PART THEREOF.
IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL VANRX’ LIABILITY TO THE BUYER FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM THIS CONTRACT, OR FROM ITS PERFORMANCE OR BREACH, OR FROM THE PRODUCTS OR SERVICES FURNISHED HEREUNDER, EXCEED THE PRICE OF THE SPECIFIC PRODUCT OR SERVICE WHICH GIVES RISE TO THE CLAIM. EXCEPT AS TO TITLE, ANY SUCH LIABILITY WILL TERMINATE UPON THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD SPECIFIED IN ARTICLE 6 OR 7.
If VANRX furnishes the Buyer with advice or other assistance which concerns the VANRX Product or any system or equipment that may be integrated with the VANRX Product or in which the VANRX Product may be installed and which is not required pursuant to this Contract, the furnishing of such advice or assistance will not subject VANRX to any liability, whether in contract, warranty, tort (including negligence), or otherwise.
The Buyer’s property damage and business interruption insurance will include waivers of the respective insurer’s subrogation rights as to claims against VANRX, its subcontractors, suppliers, subsidiaries and affiliates.
THE REMEDIES PROVIDED TO EITHER PARTY IN THE CONTRACT ARE SUCH PARTY’S SOLE AND EXCLUSIVE REMEDIES.
14. TERMINATION BY VANRX
(a) the Buyer becomes insolvent or bankrupt; or
(b) the Buyer fails to pay any amount owing under this Contract when due or otherwise breaches a provision of this Contract and does not remedy such failure to pay or other breach within ten (10) calendar days of being given written notice by VANRX,
VANRX may terminate this Contract in whole or in part effective ten (10) calendar days after said notice was given. In the event of such termination, VANRX will have the right to take possession of all materials and components related to the VANRX Product in whatever stage of design, manufacture, or installation it is at such time, except such VANRX Product which has already been delivered and paid in full by Buyer. VANRX will be under no obligation to finish the work, provide further support or information, or provide further VANRX Product. In the event of such termination, the Buyer will pay to VANRX the greater of (i) any unpaid portion of the contract price, and (ii) an amount equal to the costs incurred by VANRX for all work or services performed up to the date of termination (including costs and expenses incurred and non-cancellable commitments made by VANRX to third parties), all reasonable costs and expenses incurred by VANRX after termination to recover, store, protect, market, sell, disassemble or dispose of the VANRX Product and related materials and components, and an amount equal to VANRX’ overhead and profit on the foregoing (based on the purchase price under the VANRX Quotation).
NOTHING IN THIS ARTICLE 14 LIMITS ANY OTHER RIGHTS OR REMEDIES AVAILABLE TO VANRX UNDER THIS CONTRACT, ANY LAW, INCLUDING ANY STATUTE, REGULATION OR COMMON LAW, ARISING FROM ANY TERMINATION OF THIS CONTRACT PURSUANT TO THIS ARTICLE 14.
15. TERMINATION BY BUYER
If the Buyer has complied with all of its obligations under this Contract and VANRX becomes bankrupt or insolvent or breaches a material provision hereof and does not commence to remedy such breach within thirty (30) calendar days of being given written notice by the Buyer, the Buyer may terminate this Contract in whole or in part effective thirty (30) calendar days after such notice was given. In the event of such termination, immediately upon payment from the Buyer to VANRX for the costs incurred by VANRX for all work or services (including cost to acquire materials) performed by VANRX up to the date of termination, including costs and expenses incurred, and non-cancelable commitments made, by VANRX to third parties and VANRX’ overhead and profit on the foregoing (based on the purchase price under the VANRX Quotation). Upon such payment, to the extent that the VANRX Product that was the subject of the termination is identified in the VANRX Quotation as a “Machine”, the Buyer will have the right to take possession on an “as is where is” basis (without any representation or warranty) of that VANRX Product (in whatever state of design or manufacture it is at such time), including any equipment incorporated into the “Machine” at the time of termination and identified as an “Option” in the VANRX Quotation and the Buyer may then finish the work, at its own cost, by any reasonable means the Buyer deems appropriate. THE REMEDY PROVIDED TO THE BUYER IN THIS ARTICLE WILL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY IN RESPECT OF ANY BANKRUPTCY OR INSOLVENCY OF VANRX AND IN RESPECT OF ANY BREACH OF THIS CONTRACT BY VANRX, OTHER THAN IN RESPECT OF EVENTS DESCRIBED IN ARTICLES 6, 7 OR 12(D) OF THESE CONDITIONS.
Neither party will assign this Contract without the prior written consent of the other party, provided that VANRX may assign this Contract and/or its rights and obligations hereunder to an acquirer of all or substantially all of its assets to which this Contract relates or to any entity with whom it merges, amalgamates or otherwise consolidates.
17. LAW OF THE CONTRACT
This Contract is governed by the law in force in the Province of British Columbia and the laws of Canada applicable in British Columbia. Each party irrevocably and unconditionally submits to and accepts the exclusive jurisdiction of the courts exercising jurisdiction in British Columbia, and any court that may hear appeals from any of those courts, for any proceeding in connection with this Contract, subject to the right to enforce a judgement obtained in any of those courts in any other jurisdiction, and irrevocably waives any objection to the venue of any legal process commenced in the courts of British Columbia on any basis including that the process has been brought in an inconvenient forum. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (adopted at Vienna on 10 April 1980) does not apply in respect of this Contract.
If this Contract is intended to be performed in more than one jurisdiction, and its performance would be a violation of the applicable law of a jurisdiction where it is intended to be performed, this Contract is binding in those jurisdictions in which it is valid and the parties will use their reasonable efforts to re-negotiate and amend this Contract so that its performance does not involve a violation of the applicable law of the jurisdiction where its performance would be a violation.
The Buyer represents and warrants to VANRX that it has full legal capacity and power to enter into this Contract and to perform its obligations under this Contract and that neither its execution of this Contract nor the carrying out of its obligations under this Contract, does or will contravene any undertaking or instrument binding on it or any of its property.
19. NATURE OF THE RELATIONSHIP
Nothing in this Contract constitutes a joint venture, agency, partnership or other fiduciary relationship between the VANRX and the Buyer. At all times when performing its obligations under this Contract, VANRX is deemed to be an independent contractor and not an employee or agent of the Buyer.
If anything in this Contract is unenforceable, illegal or void then it is severed and the rest of this Contract remains in force. Where a provision of this Contract is prohibited or unenforceable, the parties must negotiate in good faith to replace the invalid provision by a provision which is in accordance with applicable law and which must be as close as possible to the parties’ original intent and appropriate consequential amendments (if any) will be made to this Contract.