AMENDED AND RESTATED AGREEMENT FOR SERVICES BETWEEN ADMA BIOLOGICS Inc. AND ARETH LLC AMENDED AND RESTATED

 

A.

ARETH guarantees that the Services will be performed in accordance with generally accepted standards in the industry and in accordance with its internal (and affiliates) SOP's.

 

B.

ARETH's guarantees shall not apply when the defect is due to a natural disaster, weather, storm, lightening, fire, flood, terrorist attack or other act of god out of ARETH's direct control.

 

C.

All representations, warranties and guarantees made by ARETH in connection with the Services are limited to those set forth in this Article VI. IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY EXCLUDED. For any deficiencies in the Services, ADMA shall be restricted to the remedies expressly set forth in this Article VI; such remedies are ADMA's sole and exclusive remedies and ADMA hereby waives any and all other remedies, whether at law or in equity, and regardless of whether the claim is asserted under contract, tort (including the concurrent or sole and exclusive negligence of ARETH), strict liability or otherwise.

 

A.

Subject to Section B below, ARETH will defend, indemnify and hold ADMA harmless from all claims, liabilities, demands, costs, expenses (including attorneys' fees) and causes of action arising out of third party claims for bodily injury (including death) and damage to tangible property to the extent caused by a negligent act or omission of ARETH, its employee or subconsultant.

 

A.

During the term  of  this Agreement,  ARETH  shall, at its sole expense, secure and maintain  in force policies  of insurance  of the following types:

 

1.

Workers' compensation coverage in accordance with the statutory requirements of the jurisdiction in which services are to be performed.

 

2.

Employer's liability insurance with a minimum of $250,000.

 

3.

Comprehensive General Liability Insurance, subject to a limit for bodily injury and property damage combined of at least $1,000,000 aggregate.

 

4.

Automobile liability insurance subject to a limit for bodily injury and property damage combined, of at least $1,000,000 per occurrence.

 

B.

If requested, ARETH shall furnish ADMA  certificates  of  insurance  evidencing  the insurance  coverages  required  in  this Article  IX.   The certificates  shall stipulate that should any of the above insurance policies be cancelled before  the termination  of this Agreement,  the issuing company  will  endeavor to mail  thirty (30) days' written notice  to  ADMA.

 

C.

As between ARETH and ADMA,  ADMA  agrees to insure (or at its election  to self-insure)  its existing property and the facilities which are the subject of the ARETH' services, from  risks insurable under Fire and Extended Coverage, All Risk Builder's Risk, and Business Interruption Insurance policies. ADMA hereby waives  any  rights  which  it  or its  insurers may have against ARETH for any damages,  losses  or expenses  resulting  from  the risks  to be insured (or self-insured) by ADMA or its contractors on the  facilities  which  are  the subject of ARETH' Services, and ADMA agrees  to  include  ARETH  as  an  additional  insured in all such policies and in any waiver of rights obtained by  ADMA  from  its  contractor with respect to property  damage insurance carried by such contractor.

 

A.

All materials and information that are the property of ADMA and all copies or duplications thereof shall be delivered to ADMA by ARETH, if requested by ADMA, upon completion of Services. ARETH may retain one complete set of reproducible copies of all of its instruments of service.

 

B.

ARETH agrees they have no right, title or claim to the work, drug, programs, data which is preformed and conducted by ADMA.

 

B.

Upon completion of the Project or sooner if ADMA so requests, the ARETH shall return to ADMA's representative all Primary Data furnished  to  the  ARETH  under  this  Agreement and shall, if requested, deliver to the ADMA's representative all drawings, schedules, calculations, and other documents generated by ARETH for use in connection  with  the  Project  ("Secondary Data").

 

C.

ARETH shall not use for itself or to disclose to third parties any Primary Data or Secondary Data without the prior written consent of Owner.

 

D.

The nondisclosure obligations pertaining to Primary and Secondary Data shall terminate three (3) years from date ARETH's association with this Project terminates.  The nondisclosure  obligations  shall not  apply to any  data which:

1.

Was known to the ARETH (and previously unrestricted) before disclosure of Primary Data to ARETH under this Agreement or before generation of Secondary Data;

 

2.

Is subsequently acquired by the ARETH from a third party who is not in default of any obligation restricting the disclosure of such information; or

 

3.

Is subsequently available or becomes generally available to the public.

 

E.

Notwithstanding this nondisclosure obligation, ARETH may nevertheless draw upon its experience in its future association with other companies.

 

If this Agreement authorizes ARETH to perform procurement Services, the following terms will apply:

 

A.

ADMA appoints ARETH as its Agent, and ARETH accepts such appointment to purchase in ADMA's name and on behalf of ADMA, equipment, materials, supplies and services in connection with the project(s).

 

B.

Such purchases shall be made by a special purchase order provided by ADMA, or such other forms, terms and conditions, or modifications or revisions to said forms as ADMA may in its sole discretion at any time instruct ARETH to use. ARETH shall furnish ADMA with a copy of the purchase order document at the time the purchase order is issued. All purchases shall be carried out in accordance with the procedures mutually agreed upon by ADMA and ARETH.

 

D.

All purchase orders issued by ARETH hereunder shall be signed by ARETH for ADMA. The ownership and title of all items purchased hereunder shall pass directly from the selling party to ADMA, and ARETH shall at no time be a party to such transaction other than as agent of ADMA unless requested by ADMA to do so. ADMA shall have the unilateral right to have the commitment authority of ARETH, its employee or this limited agency authorization in its entirety revoked and cancelled at any time, with or without cause. ADMA shall be obligated directly to the selling party for all payments for materials, equipment, supplies and services procured hereunder.

 

E.

ARETH shall maintain at all times at its offices in Ramsey, NJ, a complete file of all commitments, drawings, specifications, insurance certificates, guarantees and warranties relating to its work on behalf of ADMA, and these shall remain the property of ADMA and shall be turned over to ADMA at the conclusion of the project.

 

F.

The agency relationship created hereby shall be limited to the purchase of materials, equipment, supplies and services for the project and to such ancillary activities as may be necessary or appropriate in connection therewith, including but not limited to, freight movement, freight consolidation and freight forwarding; expediting of deliveries of purchased items, and receiving reports for such items when they arrive at the project.

 

G.

ARETH shall not have authority to make any representation on behalf of ADMA or to commit ADMA in any way beyond the express authority granted by this Article XVII, unless otherwise granted by ADMA in writing.

 

H.

ADMA shall hold ARETH and its employees harmless from any claims, suits or liabilities arising out of any breach or other failure of performance by any contractor, vendor or supplier under any contract or purchase order issued by ARETH hereunder.

 

I.

ARETH shall give ADMA immediate notice in writing of any action, suit or lien filed or to be filed, and prompt notice of any claim made against ADMA or ARETH by any vendor, contractor or subcontractor which may result in litigation or a lien in any way related to the project. ARETH's liability for its Services is as stated in Article VI  and, except for the gross negligence or willful misconduct of ARETH or its employees, ADMA will defend and indemnify ARETH from any actions, suits, liens or claims asserted by any vendor, contractor or subcontractor.

 

A.

If ARETH is called upon to observe the work of ADMA's construction service contractor(s) for the detection of defects or deficiencies in such work, ARETH will not bear any responsibility or liability for such defects or deficiencies or for the failure to so detect. ARETH shall not make inspections or reviews of the safety programs or procedures of the construction service contractor(s), and shall not review their work for the purpose of ensuring their compliance with safety standards.

 

B.

ARETH shall not assume any responsibility or liability for performance of the construction services, or for the safety of persons and  property  during  construction,  or  for  compliance with federal, state  and local  statutes, rules, regulations  and  codes  applicable  to the conduct  of  the construction services.

 

C.

All services performed by others, including construction service contractors and their subcontractors, shall be warranted only by such others and not by the ARETH.

 

D.

All contracts between ADMA and its construction service contractor(s) shall contain broad form indemnity and insurance clauses in favor of ADMA and ARETH, in a form satisfactory to ARETH.

 

A.

ADMA and ARETH understand and appreciate that their long term mutual interests will be best served by affecting a rapid and fair resolution of any claims or disputes which may arise out of the Services performed under this Agreement or from any dispute concerning Agreement terms. Therefore, both Parties agree to use their best efforts to resolve all such disputes as rapidly as possible on a fair and equitable basis. The first stage of the resolution process shall be negotiations between the respective project managers of the Parties.

 

B.

If any dispute or claim arising under this Agreement cannot be readily resolved by the Parties pursuant to negotiations between the project managers, the Parties agree to refer the matter to a panel consisting of one (1) executive from each party not directly involved in the claim or dispute for review and resolution. A copy of the Agreement and other relevant documents, agreed upon facts (and areas of disagreement), and concise summary of the basis  for each side's contentions will be provided to both executives who shall review the same, confer, and attempt to reach  a mutual resolution of the issue.

 

C.

If the dispute has not been resolved under the process  set forth in Section B within thirty (30) days after the dispute  was first referred  to the executive panel,  the Parties  will  attempt  to resolve the dispute through non-binding mediation. If the mediation is to be utilized, the Parties  shall  select  a  single unrelated  but  qualified  Mediator  who  shall  conduct a meeting (not to exceed one day) during which each party shall present its version of the facts  (supported by relevant documents), its assessment of damages,  and  its  argument.  The Parties shall provide the Mediator with copies of all documents provided to their executives under Section B at least ten (10) days prior to the scheduled date of the mediation meeting.  The Parties may also provide the Mediator with copies of any laws or regulations that they feel are relevant to the dispute. A copy of the Agreement will be provided to the Mediator. Formal written arguments, legal memorandum, and live testimony are discouraged but may be permitted at the discretion of the Mediator. Each party agrees to make any relevant, non-privileged documents available to the other party for its review and use in preparing its position under this clause without the need for subpoena or other court order.

 

D.

After the presentations of the Parties, the Mediator will meet with both Parties and provide each of them, on a confidential basis, with his/her views of the strengths and weaknesses of their respective positions. The Parties will then attempt to resolve the matter with the assistance of the Mediator.  If the Parties cannot achieve resolution at the mediation meeting or within forty-eight (48) hours after the close of such meeting, the Mediator will, within fifteen (15) additional days, issue a written, non-binding decision on the disputed issues.

 

E.

If the matter has not been resolved utilizing the processes set forth above and the Parties are unwilling to accept the non-binding decision of the Mediator, either or both Parties may then elect to pursue resolution through litigation. In the event of any litigation between the Parties, it is agreed and stipulated that the case shall be heard and decided by the court, without a jury.

 

F.

The costs of the Mediator shall be borne by the losing party (determined at mediation or through subsequent litigation).  Each Party will bear its own costs of mediation.

 

Original to: Jim Komas

 

 

Either party may, by written notice to the other, change the representative or the address to which such notices, certificates, or communications are to be sent.

 

By: /s/ Adam S. Grossman

Title: President and CEO