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SEC Filings

10-Q
ATHENEX, INC. filed this Form 10-Q on 05/09/2019
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regular business hours and upon reasonable notice, be afforded access to, and shall be permitted to audit and copy, the Design-Builder’s records and accounts, including complete documentation supporting accounting entries, books, correspondence, instructions, drawings, receipts, subcontracts, Contractor’s proposals, purchase orders, vouchers, memoranda and other data relating to the Contract. The Design-Builder shall preserve these records for a period of three years after final payment, or for such longer period as may be required by law.

§ A.5.6 Relationship of the Parties

The Design-Builder accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to exercise the Design-Builder’s skill and judgment in furthering the interests of the Owner; to furnish efficient construction administration, management services and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in an expeditious and economical manner consistent with the Owner’s interests. 

§ A.5.7 Additional Terms

 

§ A.5.7.1 The Parties acknowledge, understand, and agree that Design-Builder underwent a name-change on or about August 31, 2018, wherein Design-Builder changed its name from “M+W U.S., Inc.” (“M+W”) to “Exyte U.S., Inc.” (“Exyte”). As such, all references to “M+W” in the Agreement, the First Amendment, the Second Amendment, and all other related Contract documents, exhibits, and/or attachments shall be removed and replaced with “Exyte.”

 

§ A.5.7.2 Notwithstanding anything in the Agreement, the First Amendment, the Second Amendment, and all other related Contract documents, exhibits, and/or attachments to the contrary, Owner acknowledges and agrees that any and all warranties related to the pre-purchase of long lead equipment (hereinafter, “Long Lead Equipment Warranties”, which shall mean equipment purchased by Design-Builder and assigned to a subcontractor for installation.  Examples include, but are not limited to: Chillers, Boilers, Cooling Towers, Electrical Switchgear, and process equipment as identified in the procurement matrix) may be subject to expiration prior to the warranty periods set forth in the Agreement. As such, the Parties acknowledge and agree that Design-Builder shall have no obligation, duty, or liability to correct defective Work following the expiration of the respective Long Lead Equipment Warranties, and Owner hereby releases Design-Builder from all damages, costs, or liabilities following the expiration of such Long Lead Equipment Warranties.

 

§ A.5.7.3   In addition to the limitation of liability outlined in § 3.1.14.3 of the Agreement, Owner acknowledges and agrees that Design-Builder’s liability shall be capped for all damages that arise out of or relate to Eaton Corporation’s (“Eaton”) and/or Mechanical Equipment Corporation, Inc.’s (“MECO”) acts or omissions, work, or respective subcontract. Notwithstanding anything in the Agreement, the First Amendment, the Second Amendment, and all other related Contract documents, exhibits, and/or attachments to the contrary:

A.5.7.3.1  In the event that Eaton causes or contributes to any liabilities, costs, and/or direct or indirect damages  to Owner (consequential or otherwise), Design-Builder, and/or the Project (including, but not limited to, the performance or non-performance of Eaton’s  equipment or work) (collectively, “Eaton-related Damages”), Owner agrees that Design-Builder’s liability in connection with the Eaton-related Damages shall not exceed the amount that Design-Builder actually recovers from Eaton for the Eaton-related Damages. For the avoidance of doubt, Owner agrees that Design-Builder will not be responsible for any Eaton-related Damages or costs that exceed the amount that Design-Builder actually recovers from Eaton.

 

A.5.7.3.2  In the event that MECO causes or contributes to any liabilities, costs, and/or direct or indirect damages  to Owner (consequential or otherwise), Design-Builder, and/or the Project (including, but not limited to, the performance or non-performance of MECO’s  equipment or work) (collectively, “MECO-related Damages”), Owner agrees that Design-Builder’s liability in connection with the MECO-related Damages shall not exceed the amount that Design-Builder actually recovers from MECO for the MECO-related Damages. For the avoidance of doubt, Owner agrees that Design-Builder will not be responsible for any MECO-related Damages or costs that exceed the amount that Design-Builder actually recovers from MECO.

 

§ A.5.7.4 The Owner acknowledges and agrees that should Design-Builder submit its Applications for Payment in accordance with the terms of the Agreement and the forms included in Exhibit E to the Agreement, then Owner shall, diligently and without delay, proceed with issuing a Certification for Payment in accordance with the seven day timeframe referenced in § 9.4 (“Certificates for Payment”) of the Agreement. The Parties hereto understand and agree that all invoiced amounts ending in cents may be rounded to the nearest whole dollar amount, and as such, the Owner further acknowledges and agrees that the issuances of a Certification for Payment shall not be delayed, withheld, or rejected due to matters involving rounding discrepancies and/or mismatches.

 

 

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