Commerical Terms

Price. All prices for Products are firm and may not be increased, except as may be permitted below under “Changes”. Price covers the net weight of material, packaging, labeling, and no extra charges of any kind (including, but not limited to, charges for containers, insurance, packing, crating, storage, handling or cartage, interest charges, service charges and the like) will be allowed. Unless prohibited by law, Supplier will separately indicate on its invoice any tax that is required to be imposed on the sale of Products. Supplier warrants that the prices to be charged for Products are not more than any prices charged to any other customer for similar quantities and delivery requirements. Any price decreases applicable to the Products shall be applied to reduce the price of any unshipped Products as of the date of the price decrease.

Purchase Orders. Phenomenex is under no obligation or commitment to purchase any Product and/or service from Supplier until Phenomenex issues a purchase order (or “PO”) for Products subject to the terms of this agreement. Supplier will be deemed to have accepted a Phenomenex-issued PO on the date appearing on such PO, and Supplier will not reject any such Phenomenex-issued PO, unless the PO does not conform to the terms of this agreement. In the event of such non-conformity, Supplier will immediately advise Phenomenex of such within five business days of receiving such non-conforming PO. All Product purchase forecasts must be set forth in writing, and either provided by Phenomenex or mutually developed and agreed to by the parties. Notwithstanding anything to the contrary, all Product purchase forecasts are not binding in any way on Phenomenex. Phenomenex may modify any and all Product purchase forecasts at any time in its sole discretion. Supplier represents and warrants that it has the capacity, resources, and expertise necessary to manufacture and deliver to Phenomenex the forecasted volume of Products. Supplier will immediately notify (and thereafter confirm in writing to) Phenomenex of any inability to meet current forecasts when Suppler becomes aware of such inability. Unless otherwise agreed to in a written document signed by both parties, Phenomenex will not be responsible for, or in any way liable to Supplier or any third party with respect to, any material commitments or production arrangements. Nothing in this agreement shall require Phenomenex to reimburse for any non-recurring engineering costs or other costs. The Terms contained in this Agreement shall supersede any conflicting terms contained in any PO, invoice or other document used or submitted by either party in connection with the purchase of Products.

Changes. All quantities ordered are estimates only and may be revised as Phenomenex’s requirements change. Phenomenex may at any time make changes in Product specifications, drawings, designs, delivery dates, shipping instructions or other terms of the PO. Such changes will be confirmed in writing signed by Phenomenex’s authorized representative. Supplier must notify Phenomenex within ten (10) days of Phenomenex’s notice whether and to what extent such changes will affect price or time of delivery.

Transportation. Unless otherwise specified on the face of the PO, Supplier agrees to ship Products to Phenomenex FCA (Incoterms 2020) Named Place, where Named Place is the designation listed on the front of the PO, and if no place is identified, then at Supplier’s dock. Phenomenex will not pay premium transportation charges unless authorized by Phenomenex in writing. Supplier will list any unauthorized charges not otherwise billed to Phenomenex as a separate line item on Supplier’s invoice. If Supplier ships Products by an unauthorized method or carrier, Supplier will pay any resulting increased freight costs. Supplier will release rail or truck shipments at the lowest valuation permitted.

Title and Risk of Loss. Risk of loss, damage or destruction will pass to Phenomenex when the Products are delivered to and finally inspected by Phenomenex. Notwithstanding the foregoing or when transfer of risk occurs, transfer of title to Products occurs only after 48 hours from the time the Products are physically received and accepted by Phenomenex or its designated purchaser at the designated location, regardless of the point of inspection, if any.

Shipments. Supplier agrees to assure deliveries in the quantities and on the dates specified in Phenomenex’s PO. Unless otherwise expressly stated, time is of the essence. In the event any shipment is not made in time for delivery on the date and in the quantity set forth on the PO, or if applicable, the PO is shipped without an approved/transacted Advance Shipment Notice, Phenomenex may: (i) return to Supplier some or all of the Products in the shipment at Supplier’s risk and expense, including without limitation, warehouse or handling cost; (ii) purchase substitute products elsewhere and charge Supplier with any resulting loss; (iii) direct Supplier to make an expedited shipment of additional or replacement Products, with the difference in cost between any expedited routing and the PO routing to be paid by Supplier; or (iv) debit Supplier for costs incurred while manually receiving materials into Phenomenex’s Material Requirement Planning (MRP) system. Supplier agrees to notify Phenomenex immediately if Supplier has reason to believe that any Product will not be delivered as ordered, or a shipment will not be made as scheduled.

Packing List. Each shipment made by Supplier shall include a packing list containing the PO number, Phenomenex’s product identification and part number, quantity shipped, date of shipment, Country of Origin, Product weight, and such other information as Phenomenex may reasonably request or is required by applicable law.

Inspection and Rejection. All Products shall be received subject to Phenomenex’s acceptance or rejection on or before the end of the Inspection Period. Phenomenex may reject any entire order based upon a reasonable sampling of Products. “Inspection Period” means a reasonable time after delivery of any Products, to allow for Phenomenex’s performance of any inspection, installation activities, testing, or trials. Partial or total payment by Phenomenex for Products prior to the end of the Inspection Period shall not constitute Phenomenex’s acceptance thereof, nor shall such payment remove Supplier’s responsibility for any non-conforming items. Supplier agrees to provide and maintain inspection and process control systems acceptable to Phenomenex with respect to the manufacture of Products, and Supplier agrees to keep and make available complete records of all Supplier’s inspection work and process control work for the life of the Products plus seven (7) years.

Quality Assurance. Supplier shall apply, maintain and document a quality system that complies with ISO or a comparable standard for guaranteeing that the Products and services comply with the agreed quality.

Invoices. Invoices shall include at least the following information: purchase order number, product number(s), product description(s), sizes, quantities, unit prices, unit of measure (UOM), and extended totals. Payment of any invoice shall not constitute acceptance of any Products and shall be subject to adjustment for errors, shortages, defects in the Products and the like. All documents should be submitted to the location or email on the front of this Order.

Payments. Phenomenex shall pay accurate invoices arising under this agreement within ninety (90) days or via corporate purchasing card (“Credit Card”) subject to Phenomenex’s Credit Card Usage Agreement from the date of the invoice prepared in accordance with the terms of this agreement. Invoices shall be issued after the delivery of the Product. If Phenomenex is disputing the amount of an invoice in good faith, such invoice shall not be deemed past due until such discrepancy has been resolved, so long as Phenomenex notifies Supplier of such dispute by the date payment would otherwise be due. In case of late delivery or performance the payment date appearing on the corresponding invoice may be deferred by this same time.

Set-Off. Phenomenex may deduct any amounts owed Phenomenex by Supplier or any of Supplier’s affiliates on any basis whatsoever under any order from the amount owed to Supplier. Phenomenex may set-off such amounts owed Phenomenex by right, regardless of whether the legal requirements for set-off have been met or not.

Warranty. Supplier represents, warrants, and covenants that, for twenty-four (24) months following Phenomenex’s acceptance of such Products or the longest period provided by Supplier to any other purchaser of substantially similar goods or services (“Warranty Period”) that the Products: (i) are free of all liens, claims or encumbrances; (ii) conform strictly to all express or implied specifications, drawings, plans, instructions, samples or other descriptions or shall conform to the highest quality if no specifications are provided and meet the performance requirements of the PO; (iii) are fit and sufficient for the purpose(s) for which they are manufactured and sold, and if Supplier knows (or has reason to know) of a particular purpose for which Phenomenex or Phenomenex’s customers intend to use the Products, are fit for such particular purpose; (iv) are new and merchantable; (v) are free from defects in design, material and workmanship, whether latent or otherwise; (vi) are new and not used, reconditioned or refurbished and (vii) comply with all applicable laws, rules and regulations, all applicable industrial and governmental safety standards and other standards of performance, and all requirements of this agreement. Supplier represents, warrants and covenants that neither the Products nor use of the Products will infringe any patent, copyright, trade secret, trademark, mask work or other property right of a third party. Supplier represents, warrants, and covenants that any service provided will be performed in an expert, professional and competent manner. Supplier’s entry into and performance of its obligations hereunder shall comply with and is not prohibited by any applicable laws, rules, regulations or other contractional obligations to a third party. Supplier agrees that these warranties: (x) survive the inspection, acceptance and use of the Products by Phenomenex and Phenomenex’s customers; (y) are for the benefit of Phenomenex and its successors, assigns, customers and users of Phenomenex’s products; and (z) are in addition to any warranties and remedies to which Phenomenex may otherwise agree or which are provided by law. Supplier agrees to extend to Phenomenex customers and Phenomenex (and to enforce) any warranties received from Supplier’s suppliers. Supplier further represents, warrants, certifies and covenants that Supplier has established an effective program to ensure that the activities of any suppliers that Supplier utilizes to provide any goods or services that will be incorporated into the Products supplied under this agreement will be conducted in conformance with the warranties, representations, and covenants contained in this agreement. Supplier further warrants that it will make spare parts of Products available to Phenomenex for a period of five (5) years from the date of shipment at Supplier’s then current price, less applicable discounts. This Warranty shall be construed as a condition and a guarantee, shall not be exclusive, shall survive any inspection, installation, acceptance and payment by Phenomenex, and shall survive the termination and expiration of the Warranty Period for any claim made by Phenomenex before such termination or expiration.

Indemnification. Supplier shall defend, indemnify and hold harmless Phenomenex, its affiliates, and their respective officers, directors, employees, agents and direct and indirect customers from and against any and all claims, liabilities, damages, judgments, penalties, losses and expenses (including without limitation reasonable attorneys’ fees and expenses) (“Damages”) (a) based on any claim by a third party alleging that the Products or Supplier’s manufacturing processes used to manufacture such Products infringe a patent, copyright, trademark, trade secret or other proprietary rights of a third party, whether such are provided alone or in combination with other products, software or processes; (b) arising out of or relating to the breach by Supplier of any covenant, representation, certification or warranty contained in this agreement or from any act or omission of Supplier or Supplier’s agents, employees, or subcontractors (including without limitation the obligation to comply with all applicable laws); (c) the death or bodily injury to any person or destruction of or damage to property relating to or arising out of any products or services provided under this agreement; or (d) the negligence, gross negligence, omission, intentional or willful misconduct or fraud of Supplier, its employees, agents, contractors or anyone else for whose act Supplier is responsible. Supplier shall not settle any such suit or claim without Phenomenex’s prior written approval. Supplier agrees to pay or reimburse all costs, including attorneys’ fees that may be incurred by Phenomenex related to enforcement of this Indemnification provision. Should Phenomenex’s use, or use by its distributors, subcontractors or customers, of any Products be enjoined or threatened by injunction, Supplier shall, at its sole cost and expense, either (a) substitute fully equivalent non-infringing Products; (b) modify the Products so they no longer infringe but remain fully equivalent in functionality; (c) obtain for Phenomenex, its distributors, subcontractors, or customers the right to continue to use the Products; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Products.

Packaging and Labeling. Supplier shall be responsible at its own expense for the safe and suitable packaging of the Products. Unless otherwise specified in the applicable PO, Supplier shall pack, mark and ship all Products at its own expense and in compliance with good commercial practice, the specifications set forth in this Agreement or the PO, and all applicable laws, rules and regulations. An itemized packing list showing the PO number, Supplier’s part number, Phenomenex’s part number (if applicable), quantity shipped, certificate of analysis, and date of shipment shall be included with each shipment. Each container shall be marked to show the PO number, date of shipment, packing sheets, delivery tickets, bills of lading, names of consignee and consignor and unit of measures.

Termination

Without Cause. Phenomenex may terminate all or any part of a PO or this agreement without cause by giving Supplier ten (10) days written notice. In such event, Supplier shall immediately cease all work and terminate all orders and contracts, and Phenomenex shall be liable to Supplier only for Supplier’s reasonable actual costs as a direct result of the termination that cannot be recovered or mitigated. Such costs must also have been incurred prior to Supplier’s receipt of such termination notice, and directly pertain to the terminated PO(s). Supplier will notify Phenomenex in writing of such costs within thirty (30) days of termination. The foregoing shall constitute Phenomenex’s only liability to Supplier for termination without cause, and such liability will not exceed the Product price due Supplier under the terminated PO(s).

With Cause. If Supplier defaults, Phenomenex may terminate all or any part of a PO and/or this agreement without liability to Supplier by giving notice to Supplier. A default will occur if Supplier (i) breaches a material term of this agreement; (ii) fails to perform within the time period specified in the PO or this agreement; (iii) fails to make progress in a manner which endangers performance of the PO or this agreement, or (iv) fails to comply with the applicable laws and regulations. Phenomenex may terminate the PO and/or this agreement upon a default, and if Supplier does not cure the default within ten (10) days (or any longer period Phenomenex authorizes in writing) after Supplier’s receipt of Phenomenex’s written notice of default. Additionally, if Phenomenex determines that any of Supplier’s representations, warranties, certifications or covenants are untrue, Phenomenex shall have the right to terminate this agreement immediately without further compensation to Supplier in addition to any other rights or remedies available to Phenomenex at law or in equity. A default will also occur if Supplier fails to meet its financial obligations as they become due, if any proceeding under the bankruptcy or insolvency laws is brought against Supplier, a receiver is appointed for Supplier, or Supplier makes an assignment for the benefit of creditors. If a PO or this agreement is terminated due to Supplier’s default, without prejudice to any other legal or equitable remedies available to Phenomenex, Phenomenex will have the right to: (a) refuse to accept delivery of any and all Products; (b) return to Supplier unused Products already accepted and recover from Supplier payments made for such Products (and for Phenomenex’s freight, storage and other expenses); (c) recover any advance payments to Supplier for undelivered or returned Products; (d) purchase Products elsewhere and charge Supplier with any resultant losses, including, without limitation, incidental or consequential damages incurred that are attributed to Supplier’s default; and (e) take title to and possession of any previously undeliverable part of work performed under this agreement and/or PO. Phenomenex may terminate this agreement upon thirty (30) days written notice if there is a change in either the current majority ownership of Supplier or in the ownership of all or substantially all of the assets of Supplier, which change, if anticipated to occur, Supplier will provide prompt notice to Phenomenex.

Effect of Termination. Termination of this agreement with or without cause by Phenomenex will result in termination of all existing, unfulfilled POs as of the same effective date of termination, unless Phenomenex expressly indicates in writing that certain POs will continue in effect until fulfilled by Supplier. In which case, the terms of this agreement will apply to such surviving POs.

Compliance

General. Supplier represents, warrants and covenants that all of the Products sold or otherwise provided pursuant to this Agreement (including without limitation pursuant to any Order) will be produced and/or provided in compliance with, and that Supplier and its business and performance hereunder do and will comply with, all applicable laws, rules and regulations (including without limitation the U.S. Foreign Corrupt Practices Act, the UK Anti-Bribery Act, the OECD Anti-Bribery Convention and all other applicable anti-bribery and anti-corruption laws, rules and regulations) and with the Danaher Corporation Supplier Code of Conduct (available at http://www.danaher.com). Supplier shall, at its sole cost, secure and maintain all necessary licenses, permits, authorizations or other approvals required for the operation of Supplier’s business or any property used therein, or as necessary for Supplier’s performance hereunder. Supplier will complete and sign all declarations requested by Phenomenex in connection with Phenomenex’s compliance with applicable laws and regulations, use appropriate systems and processes to ensure the accuracy of such declarations and maintain appropriate records to allow traceability of all Products and parts of Products.

Conflict Minerals. Without limiting the foregoing, Supplier acknowledges that Phenomenex is required to comply with Section 1502 of the United States Dodd-Frank Wall Street Reform and Consumer Protection Act (“the Dodd-Frank Act”) and inter alia must file disclosures and reports with the United States Securities and Exchange Commission related to the use of tin, tantalum, tungsten and gold (“Conflict Minerals”). Supplier represents and warrants that it will source, and track the chain of custody of, all Conflict Minerals contained in any products or materials provided by Supplier to Phenomenex in accordance with the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas (or such other internationally recognized due diligence standard as Phenomenex and Supplier may jointly agree upon). At Phenomenex’s request (which may be as frequently as quarterly at Phenomenex’s discretion), Supplier must execute and deliver to Phenomenex declarations in the form of the EICC-GESI Conflict Minerals Reporting Template as adopted by EICC-GESI from time to time, or (at Phenomenex’s discretion) in any other form that Phenomenex reasonably requests. Supplier agrees and represents that all products and materials provided by Supplier to Phenomenex after December 31, 2014 shall be “Conflict Free” (as defined in the Dodd-Frank Act), and, at Phenomenex’s request from time to time, Supplier shall execute and deliver to Phenomenex a written declaration to the same effect.

Audit Rights. Phenomenex has the right, from time to time and upon at least ten (10) working days prior notice, to perform (and/or have an appointed audit firm perform) an audit of Supplier’s compliance with this Agreement. Supplier shall cooperate with such audit by making available all reasonably requested information and all reasonably requested access to Supplier personnel at Phenomenex’s sole expense (except where the audit reveals material noncompliance with contract specifications, in which case the full cost of the audit will be borne by Supplier (in addition to any other remedies Phenomenex may have)). Supplier will provide reasonable access to data at a mutually agreeable location to allow Phenomenex or such appointed audit firm acting at its direction to perform such an audit.

Product Regulatory Compliance. Supplier represents, warrants, certifies, and covenants that the Products and their manufacture will comply with all applicable drug and medical device laws and regulations, in countries where the Products are sold.

Product Changes. Changes proposed by Supplier, both material and process changes, which may affect form, fit, function, reliability, serviceability, performance, interchangeability, regulatory compliance, safety or interface with Phenomenex’s equipment must be submitted along with a written change notice, for Phenomenex’s approval. At a minimum, the change notice must include Supplier’s affected part number, date of implementation, serial number of the assembly that is changed, reasons for the change and the specific dates of the change. This change notice must be sent to Phenomenex a minimum of ninety (90) calendar days in advance of the proposed implementation date. Phenomenex will then have fifteen (15) days to respond to Supplier with approval of the change, disapproval of the change, or a request for sample evaluation by Phenomenex.

Spare Parts and Service. For each Product available under this agreement, Supplier will maintain for ten (10) years from the last shipment of the Product the capability to: (i) repair, and supply parts for, the Product; (ii) make such repair services and parts available to Phenomenex and its customers; and (iii) furnish all documentation, parts, service tools, and instruments necessary to effectively service the Product.

Dangerous Goods. Before shipment Supplier agrees to check whether the material is dangerous according to applicable dangerous goods transportation regulations and to comply with any similar requirements in any other jurisdictions to which we inform you the Products are likely to be shipped. When shipping the Products, the Products must be defined in accordance with UN hazard classes and packed and marked, and dangerous declarations shall be made according to criteria of transportation mode.

Crisis Management

Supplier must maintain the ability to contact Phenomenex on a 24 hour a day, 7 day a week basis in order to communicate and manage crisis situations that threaten to or interrupt the Product’s supply chain. Upon Phenomenex’s request, Supplier shall provide to Phenomenex a business contingency plan that outlines Supplier’s internal contingency arrangements to ensure Phenomenex’s continuity of supply of Products if Supplier or any of its suppliers are unable to provide Products or components to such Products to Phenomenex.

Other Terms

Our Property. All tools, layouts, models, drawings, plans, data, manufacturing aids, testing or other equipment or materials, inventions, technology, trade secrets, know how, all reproductions and replacements, or other proprietary information or derivatives thereof, and all intellectual property rights in the foregoing, which Phenomenex furnishes to Supplier, or which is developed or acquired at Phenomenex’s expense or at Phenomenex’s direction in the performance of work hereunder, shall be Phenomenex’s sole and exclusive property and deemed ”work made for hire”. Supplier hereby assigns and agrees to assign to Phenomenex, and to cause Supplier’s employees to assign to Phenomenex, in each case without additional compensation, all such property. Supplier shall bear the risk of loss and damage to all such property. All such property shall be safely maintained separate from Supplier’s property, and marked "Property of Phenomenex". Supplier shall not move Phenomenex’s property from Supplier’s premises or possession without Phenomenex’s prior written consent. Supplier agrees not to substitute any property for Phenomenex’s property and not to use such property except for performance of work hereunder or as authorized by Phenomenex in writing. Supplier also agrees to insure any tangible property at full replacement cost. Tangible property will be held at Supplier’s risk and subject to removal at Phenomenex’s written request (in which event Supplier will redeliver such property to Phenomenex at Supplier’s expense in the same condition as originally received by Supplier, reasonable wear and tear excepted).

Supplier’s Information. Unless expressly agreed in writing to the contrary by Phenomenex, any knowledge or information which Supplier discloses to Phenomenex will not be considered confidential or proprietary information, and Phenomenex may use it free from any restrictions. Supplier acknowledges that Phenomenex will use and rely upon information Supplier furnishes to Phenomenex, and that Supplier will indemnify and hold Phenomenex harmless from any and all costs and damages suffered by Phenomenex as a result of any inaccuracies in such information.

Phenomenex Information. Supplier agrees to keep confidential any materials or information furnished by Phenomenex to Supplier. Supplier will not disclose or use, directly or indirectly, such materials or information for any purpose other than for purposes of fulfilling its obligations to Phenomenex under this agreement. Supplier will return to Phenomenex, at Supplier’s expense, all such materials and information upon completion of work, termination of this agreement or at Phenomenex’s request.

Health and Safety. Supplier shall ensure that all information held by or reasonably available to Supplier regarding any potential hazards known or believed to exist in the transport, handling or use of the Products and/or performance of the services shall be received by Phenomenex in writing prior to delivery of the Products and/or performance of the services.

Intellectual Property. No rights are granted to Supplier under any of Phenomenex’s patents, copyrights, trade secrets or other property rights except as may be expressly agreed to by Phenomenex in writing. Supplier will not use or incorporate into Products any intellectual property of others without their written permission. Without limiting Supplier’s indemnity with respect to intellectual property, if the use of a Product or any part thereof is enjoined by a court, Supplier will, at Phenomenex’s option and Supplier’s expense, either procure for Phenomenex the right to continue using the Product or part, replace the same with a non-infringing equivalent, or remove the Product, refund the purchase price and reimburse Phenomenex for any related costs incurred by Phenomenex.

Trademarks. The names and trademarks of each party shall remain their sole and exclusive property. If Supplier places one of Phenomenex’s trademarks on any Product, such Product will not bear Supplier’s name or trademark and will not be sold to anyone else.

Publicity. Supplier may not, without Phenomenex’s prior written consent, issue any press release or announcement, advertise or publish the fact that Phenomenex has contracted to purchase goods or services from Supplier, disclose information relating to this agreement, or use Phenomenex’s name or trademarks, or the names or trademarks of any of Phenomenex’s affiliates or customers.

Insurance. Supplier agrees to maintain such insurance (including, without limitation, workers’ compensation, employer’s liability, comprehensive general liability, product liability and property damage insurance) as will adequately protect Phenomenex in the event of any liability arising under this agreement, and, upon Phenomenex’s request, Supplier will provide Phenomenex with written evidence of such insurance.

Governing Law. This agreement will be governed and construed in accordance with the laws of the State of California excluding its rules on conflicts of law. The United Nations Convention on Contracts for International Sales of Goods does not apply to this Agreement. The Los Angeles County Superior Court or the United States District Court for the Central District of California shall have jurisdiction and venue over all controversies arising out of, or relating to, this agreement.

Limitation of Damages. IN NO EVENT WILL PHENOMENEX BE LIABLE TO SUPPLIER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO LOST PROFITS AND LOST BUSINESS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND WHETHER OR NOT PHENOMENEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PHENOMENEX’S TOTAL LIABILITY FOR ANY CLAIM OR SERIES OF CONNECTED CLAIMS OF WHATEVER NATURE SHALL UNDER NO CIRCUMSTANCES, EXCEED THE FEES PAID UNDER THE APPLICABLE PO.

Independent contractor. None of the provisions of this agreement are intended to create, nor shall be deemed or construed to create, any relationship between Phenomenex and Supplier other than that of independent entities contracting with each other solely for effecting the provisions of this Agreement. Neither of the Parties hereto, nor any of their respective employees, shall be construed to be the agent, employer or representative of the other. Supplier is an Independent Contractor.

Remedies. The rights and remedies herein are cumulative and in addition to all other rights and remedies available at law or in equity.

Waiver and Invalidity. Any waiver or renunciation of a claim or right arising out of breach must be in writing and signed by the injured party. Any failure to enforce any provision of this agreement may not be construed as a waiver of such provision or any other provision nor of the right to enforce such provision. The invalidity, in whole or in part, of any provision hereof shall not affect the remainder of the provisions.

Assignment. Supplier may not assign any right or delegate any duty hereunder without Phenomenex’s prior written consent. Any attempted assignment or delegation by Supplier in contravention of the foregoing is hereby deemed null and void.

Force Majeure. If Supplier is unable to produce, sell or deliver any Products covered by this agreement, or Phenomenex is unable to accept delivery, buy or use any Products covered by this agreement, or either Party is unable to comply with the terms of this Agreement as a result of natural disasters, fires, floods, windstorms, severe weather, explosions, riots, wars, acts of terrorism, sabotage or general power failures affecting a region or another event or occurrence, in each case that is beyond the reasonable control of the affected Party and without such Party’s fault or negligence (a “Force Majeure Event”), then any delay or failure to perform under this Agreement that results from such Force Majeure Event will be excused for only so long as such Force Majeure Event continues, provided (a) the affected Party gives written notice of any Force Majeure Event and resulting delay (including the anticipated duration of the delay) to the other Party as soon as possible after the Force Majeure Event (but in no event more than five (5) days thereafter), (b) the affected party maintained commercially reasonable practices and used commercially reasonable efforts to avoid such Force Majeure Event prior to its occurrence, and (c) the affected party continues to use commercially reasonable efforts to mitigate the effects of such Force Majeure Event after its occurrence. If Supplier fails to provide adequate assurances that any Force Majeure Event will not exceed thirty (30) days or if any Force Majeure Event lasts more than thirty (30) days in aggregate, Phenomenex may terminate this Agreement without any liability to Supplier or obligation to purchase raw materials, work-in-process or finished Products. In the event any Force Majeure Event causes Supplier to be unable to meet delivery of Products due to shortages or lack of manufacturing capacity, labor, or materials, Supplier shall allocate its then existing resources (including, without limitation, inventory, labor, and manufacturing capacity) with priority to Phenomenex’s delivery requirements.