TERMS AND CONDITIONS OF SALE

Application — Unless otherwise agreed by an authorized distributor and JH Pharmaceutical in writing, these Terms and Conditions shall apply to authorized distributors who have signed an authorized distributor agreement (the “Authorized Distributor Agreement”, together with these Terms and Conditions hereinafter referred to as the “Agreement”) with JH Pharmaceutical (the authorized distributor with whom JH Pharmaceutical is contracting is hereinafter referred to as the “Distributor”).  In case of conflict between the Authorized Distributor Agreement and these Terms and Conditions, the Authorized Distributor Agreement shall prevail.

Distributor Responsibility to Provide Correct Information — During the Term, the Distributor agrees to provide correct information on all purchase orders of JH Pharmaceutical products, including complete product numbers, options, quantities and any special instructions.  The Distributor assumes sole and absolute liability for any failure, by the Distributor, to provide complete and accurate information when ordering products.

Acceptance — All sales of JH Pharmaceutical products (“Products”) are subject to and expressly conditioned upon the terms and conditions contained herein (the “Terms and Conditions”), and upon Distributor's assent thereto.  No variation of these Terms and Conditions will be binding upon JH Pharmaceutical unless agreed to in writing and signed by an officer or other authorized representative of JH Pharmaceutical.  Terms or conditions contained in any purchase order form which Distributor uses to order Products or related services from JH Pharmaceutical or in any other document submitted by the Distributor in connection with the purchase of the Products which are inconsistent with, or in addition to, these Terms and Conditions are rejected, objected to and shall be deemed void and of no force or effect.

Changes — Orders arising hereunder may be changed or amended only by written agreement signed by an officer or other authorized representative of both Distributor and JH Pharmaceutical, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery.  Distributor may not cancel this order unless such cancellation is expressly agreed to in writing by JH Pharmaceutical.  In such event, JH Pharmaceutical will advise Distributor of the total charge for such cancellation, and Distributor agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed onJH Pharmaceutical by its suppliers, and any other costs resulting from cancellation of this order by Distributor and permitted by JH Pharmaceutical.  A verified bill of costs issued by an officer or other authorized representative ofJH Pharmaceutical shall be conclusive as to the amount of such costs.  JH Pharmaceutical may terminate an order by Distributor, in whole or in part, upon Distributor’s breach of these terms and conditions or Distributor’s bankruptcy, insolvency, dissolution, or receivership proceedings, or upon the occurrence of any event leading JH Pharmaceutical to reasonably question Distributor’s willingness or ability to perform.

Delivery, Claims — All sales will be delivered Ex WorksJH Pharmaceutical shipping point unless otherwise noted.  If shipping and handling charges are quoted or invoiced, they will include charges in addition to actual freight costs.  Delivery of Products to the carrier at JH Pharmaceutical shipping point shall constitute delivery to Distributor and Distributor shall bear all risk of loss or damage in transit.  The general method of shipment for each item is listed inJH Pharmaceutical product directory.  However, JH Pharmaceutical reserves the right, in its sole discretion, to determine the exact method of shipment. JH Pharmaceutical reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries.  Delay in delivery of any installment shall not relieve Distributor of Distributor's obligations to accept remaining deliveries.  Immediately upon Distributor's receipt of any Products shipped hereunder, Distributor shall inspect the same and shall notify JH Pharmaceutical in writing of any claims for shortages, defects or damages and shall hold Products forJH Pharmaceutical written instructions concerning disposition.  If Distributor shall fail to so notify JH Pharmaceutical within five days after the Products have been received by Distributor, such Products shall conclusively be deemed to conform to the terms and conditions hereof and to have been irrevocably accepted by the Distributor.

Delays — Any specified delivery dates are estimates only and do not represent a promise byJH Pharmaceutical to deliver Products at a date certain.  JH Pharmaceutical shall not be liable for any loss, damage or penalty as a result of any delay in or failure to manufacture, deliver or otherwise perform hereunder due to any cause beyond JH Pharmaceutical reasonable control, including, without limitation, unsuccessful reactions, act(s) of Distributor, embargo or other governmental act, regulation or request affecting the conduct of JH Pharmaceutical business, fire, explosion, accident, theft, vandalism, riot, acts of war, strikes or other labor difficulties, lightning, flood, windstorm or other acts of God, delay in transportation, or inability to obtain necessary labor, fuel, materials, supplies or power at current prices. If any such event continues for longer than 180 days, either party may terminate Distributor’s order and Distributor will pay JH Pharmaceutical for work performed prior to termination and all reasonable expenses incurred by JH Pharmaceutical as a result of termination.  In the event of delays in delivery or performance caused by force majeure or by Distributor, the date of delivery or performance shall be extended by the period of time JH Pharmaceutical is actually delayed or as mutually agreed.  If, for reasons other than the foregoing, JH Pharmaceutical should default or delay or not deliver Products, Distributor's sole remedy against JH Pharmaceutical is an option to cancel Distributor’s purchase order, through prior written notice to JH Pharmaceutical.

Security Interest in Unsold Inventory — To secure Distributor’s obligation to pay JH Pharmaceutical for the purchase of products, Distributor grants to JH Pharmaceutical a purchase money security interest in all products purchased from JH Pharmaceutical, and in all proceeds thereof.  Distributor agrees to execute UCC Financing Statements and such other documents as may be necessary from time to time and to otherwise assist JH Pharmaceutical in perfecting its security interest, if requested.

Allocation of Products — If JH Pharmaceutical is unable for any reason to supply the total demands for Products specified in Distributor's order, JH Pharmaceutical may allocate its viable supply among any or all Distributors on such basis as JH Pharmaceutical may deem fair and practical, without liability for any failure of performance which may result therefrom.

Payment and Interest — Terms of sale are net 30 days of date of invoice, unless otherwise stated.  If the financial condition of Distributor results in the insecurity of Sigma-Aldrich, in its sole and unfettered discretion, as to the ultimate collectability of the purchase price, JH Pharmaceutical may, without notice to Distributor, delay or postpone the delivery of the products; andJH Pharmaceutical, at its option, is authorized to change the terms of payment to payment in full or in part in advance of shipment of the entire undelivered balance of said products.  In the event of default by Distributor in the payment of the purchase price or otherwise, of this or any other order, JH Pharmaceutical, at its option, without prejudice to any other of JH Pharmaceutical lawful remedies, may defer delivery, cancel Distributor’s order and any other order of Distributor, or sell any undelivered products on hand for the account of Distributor and apply such proceeds as a credit, without set-off or deduction of any kind, against the agreed upon purchase price, and Distributor agrees to pay the balance then due to JH Pharmaceutical on demand. Distributor agrees to pay all costs, including, but not limited to, reasonable attorney and accounting fees and other expenses of collection resulting from any default by Distributor in any of the terms hereof.  Invoices remaining unpaid after their due date will be subject to an interest charge of 1.5% per month (or the maximum rate allowed by law).  Distributor will pay all costs of collection on unpaid amounts, including (without limitation) attorneys’ fees and related costs.

Taxes and Other Charges — Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between JH Pharmaceutical and Distributor shall be paid by Distributor in addition to the prices quoted or invoiced.  In the event JH Pharmaceutical is required to pay any such tax, fee or charge, Distributor shall reimburse Sigma-Aldrich therefore; or, in lieu of such payment, Distributor shall provide JH Pharmaceutical at the time the order is submitted an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge.

Pricing — Any quotation provided by JH Pharmaceutical is firm only if Distributor enters an order within the time specified on the quote or, if none is mentioned, within 30 days.  Distributor must request shipment of the entire quantity of Products ordered within 6 months from the date of order, otherwise, JH Pharmaceutical standard prices at time of shipment may apply, at JH Pharmaceutical option, to future deliveries.  For pricing information regarding quotations outside the US, Distributor should contact the local subsidiary.

Price Changes — Shipment will be made promptly even if prices have been nominally increased.  Price changes will be automatically applied to Distributor’s invoice.  Notwithstanding any price quotation or prices listed by JH Pharmaceutical, if at any time prior to delivery JH Pharmaceutical costs of materials have increased by 10% or more, then JH Pharmaceutical may cancel any accepted but undelivered orders or condition the continuance of any order on Distributor’s agreement to a corresponding increase in price.

Warranties — JH Pharmaceutical warrants that its products shall, at the time of delivery, conform to the description of such products as provided to Distributor by JH Pharmaceutical through JH Pharmaceutical product directory, analytical data or other then-current literature.  THIS WARRANTY IS EXCLUSIVE, AND JH PHARMACEUTICAL MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS. JH Pharmaceutical warranties made in connection with this sale shall not be effective if JH Pharmaceutical has determined, in its sole discretion, that Distributor has misused the products in any manner, has failed to use the products in accordance with industry standards and practices, or has failed to use the products in accordance with instructions, if any, furnished by JH Pharmaceutical. JH PHARMACEUTICAL SOLE AND EXCLUSIVE LIABILITY AND DISTRIBUTOR'S EXCLUSIVE REMEDY WITH RESPECT TO PRODUCTS PROVED TO SIGMA-ALDRICH'S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN  JH PHARMACEUTICAL SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH SIGMA-ALDRICH'S INSTRUCTIONS.  JH PHARMACEUTICAL SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF  JH PHARMACEUTICAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, COST OF CAPITAL, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, ANY LIABILITY OF DISTRIBUTOR TO A THIRD PARTY, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY  JH PHARMACEUTICAL GROSS NEGLIGENCE.  THE EXCLUSION OF SUCH DAMAGES AND/OR CLAIMS SHALL BE DEEMED INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY ARISING FROM THE PURCHASE AND/OR THESE TERMS AND CONDITIONS.   JH PHARMACEUTICAL LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO CASE EXCEED THE CONTRACT PRICE FOR THE SPECIFIC PRODUCTS THAT GIVE RISE TO THE BREACH.  THESE EXCLUSIONS AND LIMITATIONS ON DAMAGES SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND AGAINST ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY.  ALL CLAIMS MUST BE BROUGHT WITHIN ONE (1) YEAR OF SHIPMENT, REGARDLESS OF THEIR NATURE.

Compliance with Laws, Regulations — JH Pharmaceutical certifies that to the best of its knowledge its Products are produced in compliance with applicable requirements of the Fair Labor Standards Act, as amended, and the Occupational Safety and Health Standards Act of 1970 and regulations, rules and orders issued pursuant thereto.

Distributor's Use of Products — JH Pharmaceutical Products are intended primarily for laboratory research purposes and, unless otherwise stated on product labels, in JH Pharmaceutical product directory or in other literature furnished to Distributor, are not to be used for any other purposes, including but not limited to, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes.  Distributor acknowledges that the Products have not been tested by JH Pharmaceutical for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise stated in JH Pharmaceutical literature furnished to Distributor.  Distributor expressly represents and warrants to JH Pharmaceutical that Distributor will properly test, use, manufacture and market any Products purchased from JH Pharmaceutical and/or materials produced with Products purchased from JH Pharmaceutical in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted.  Distributor further warrants to JH Pharmaceutical that any material produced with Products from JH Pharmaceutical shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be materials which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce.

Distributor realizes that, since JH Pharmaceutical Products are, unless otherwise stated, intended primarily for research purposes, they may not be on the Toxic Substances Control Act (TSCA) inventory.  Distributor assumes responsibility to assure that the Products purchased from JH Pharmaceutical are approved for use under TSCA, if applicable.

Distributor has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using Products purchased fromJH Pharmaceutical.  Distributor also has the duty to warn Distributor's customers, employees, contractors, agents and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the Products.  Distributor agrees to comply with instructions, if any, furnished by JH Pharmaceutical relating to the use of the Products and not misuse the Products in any manner.  If the Products purchased from JH Pharmaceutical are to be repackaged, relabeled or used as starting material or components of other products, Distributor will verify JH Pharmaceutical assay of the Products.  No Products purchased from JH Pharmaceutical shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.

Product Modifications/Improvements — Distributor is not authorized to modify Products in any manner, without specific authorization from JH Pharmaceutical.  Notwithstanding the foregoing, Distributor agrees to promptly disclose to JH Pharmaceutical in writing any improvement, concept, design, work of authorship, discovery or idea (whether patentable or not and including those which may be subject to copyright protection) generated, conceived, or reduced to practice by Distributor in connection with the sale of Products (collectively “Improvements”).  Any Improvement to any Products shall be the sole and exclusive property of JH Pharmaceutical and shall be treated as “work made for hire” as defined in the Copyright Act at 17 U.S.C. Section 101.  Distributor hereby assigns to JH Pharmaceutical all rights in the Improvements, including, without limitation, all patent, copyright, trademark and trade secret rights.

Distributor's Representations and Indemnity — Distributor represents and warrants that it shall use all Products ordered herein in accordance with Section 13 “Distributor's Use of Products,” and that any such use of Products will not violate any law or regulation.  Distributor agrees to indemnify and hold harmless JH Pharmaceutical and JH Pharmaceutical parents, affiliates, agents, officers, directors, employees and assigns (collectively, “JH Pharmaceutical Parties”) from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) that the JH Pharmaceutical Parties, or any of them, may sustain or incur as a result of: (a) any claim against the JH Pharmaceutical Parties based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law brought by Distributor, its officers, agents, employees, successors or assigns, Distributor's customers, end users, auxiliary personnel (such as freight handlers, etc.) or by other third parties, arising out of, directly or indirectly, JH Pharmaceutical Products or the use thereof; (b) Distributor's failure to perform its obligations contained herein; (c) any claim that Distributor misrepresented its authority or made any contractual commitment not expressly authorized by JH Pharmaceutical; and (d) the payment of any duty, tariff, fee, penalty or cost of any kind arising out of relating Distributor’s shipment or export of Products.  Distributor shall notify JH Pharmaceutical in writing within fifteen (15) days of Distributor's receipt of knowledge of any accident or incident involving JH Pharmaceutical Products which results in personal injury or damage to property, and Distributor shall fully cooperate with JH Pharmaceutical in the investigation and determination of the cause of such accident and shall make available to JH Pharmaceutical all statements, reports and tests made by Distributor or made available to Distributor by others.  The furnishing of such information to JH Pharmaceutical and any investigation by JH Pharmaceutical of such information or incident report shall not in any way constitute any assumption of any liability for such accident or incident by.  JH Pharmaceutical shall not be responsible for any settlement or compromise of any third party claim made without JH Pharmaceutical written consent.

Patent Disclaimer — JH Pharmaceutical does not warrant that the use or sale of the Products delivered hereunder will not infringe the claims of any United States or other patents covering the product itself or the use thereof in combination with other products or in the operation of any process.

Returns — Products may not be returned for credit except with JH Pharmaceutical permission, and then only in strict compliance Pharmaceutical return shipment instructions.  Distributor must obtain advance written authorization from JH Pharmaceutical and a written return authorization document in the form then in use by JH Pharmaceutical, prior to returning any Products.  Certain items and quantities may not be returned for credit or under any circumstances.  These items include, but are not limited to: diagnostic reagents, refrigerated or frozen products; reagents and standards which have passed their expiration dates; custom products or special orders; products missing labels, parts, or instruction manuals; and books, computer software and equipment removed from their original packaging.  Any returned items may be subject to a 20% processing fee and must be returned within 90 days of purchase.

Technical Assistance — At Distributor's request, JH Pharmaceutical may, in JH Pharmaceutical sole and absolute discretion, furnish technical assistance and information with respect to JH Pharmaceutical Products.  PH PHARMACEUITCAL MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY SIGMA-ALDRICH OR PH PHARMACEUITCAL PERSONNEL.  ANY SUGGESTIONS BY PH PHARMACEUITCAL REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF PH PHARMACEUITCAL.

Miscellaneous — JH Pharmaceuitcal failure to strictly enforce any particular term or condition contained herein or to exercise any right with respect to Distributor’s order shall not constitute a waiver of JH Pharmaceuitcal right to strictly enforce such terms or conditions or exercise such right thereafter.  All rights and remedies under this order are cumulative and are in addition to any other rights and remedies JH Pharmaceuitcal  may have at law or in equity.  Any waiver of a default by Distributor hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter.  If any provision of these Terms and Conditions shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby.  The section headings herein are for convenience only; they form no part of the terms and conditions and shall not affect their interpretation.  These Terms and Conditions shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.

Governing Law, Disputes — All disputes allegedly arising from the legality, interpretation, application, or performance of Distributor’s order, any of these terms and conditions, or the relationship of the parties shall be governed by the laws of the State of Missouri including its conflict of laws principles.  Each party to this order agrees that any dispute arising between them which results in either party instituting court proceedings shall be litigated in the Federal District Court for the Eastern District of Missouri if a basis for federal court jurisdiction is present and otherwise in the Circuit Court for the City of St. Louis.  Notwithstanding the foregoing, nothing in this section shall prevent JH Pharmaceuitcal from bringing a claim in any court having jurisdiction over Distributor to enjoin infringement of JH Pharmaceuitcal trademark, patent or other intellectual property rights, or to prevent irreparable harm to JH Pharmaceuitcal.  The parties agree to waive, to the fullest extent permitted by law, any and all rights to a trial by jury in connection with any dispute.

Export Compliance — Distributor acknowledges that the Products are specialized and potentially dangerous chemicals.  Distributor undertakes to become aware of shall comply on an ongoing basis with all applicable laws, regulations, ordinances and treaties of any governmental authority in any country having proper jurisdiction over Distributor and/or Distributor’s activities, including, without limitation, those laws and treaties of the United States or other countries relating to the import or export of Products, control of chemicals, embargoed countries, support of terrorism, customer end-use screening, and other similar laws and regulations.  Distributor shall obtain all necessary import/export licenses in connection with any import, export, re-export, transfer, and use of Products.  Distributor agrees to inform JH Pharmaceuitcal of any marking, labeling or certificate requirements, trade association or government standards or product modifications required for sale of the Products in countries where Distributor engages in sales activities.  Without limiting the foregoing, Distributor will not use any payment, discount or other benefit derived from JH PharmaceuitcalSigma-Aldrich to offer, promise or pay any money, gift or any other thing of value to any person for the purpose of influencing official actions or decisions relating to the purchase or sale of Products, while knowing or having reason to know that any portion of that money, gift or thing will, directly or indirectly, be given, offered or promised to (i) an employee, officer or other person acting in an official capacity for any government or its instrumentalities or any international organization (such as, but not limited to, the United Nations and the North Atlantic Treaty Organization) or (ii) any political party, party official or candidate for political office.