PROGRESSIVE MEDICAL, INC. GENERAL TERMS AND CONDITIONS OF SALE

THESE TERMS AND CONDITIONS SHALL GOVERN OVER AND OVERRIDE ALL TERMS AND CONDITIONS THAT ARE PART OF AN ORDER ACKNOWLEDGEMENT AND OR INVOICE ISSUED HEREUNDER, AND ALL DIFFERENT, ADDITIONAL, OR CONTRADICTORY TERMS AND CONDITIONS THAT ARE PART OF AN ORDER ACKNOWLEDGEMENT AND OR INVOICE SHALL BE NULL AND VOID AND OF NO FORCE AND EFFECT. ANY TERMS OR CONDITIONS OFFERED BY BUYER THAT ARE DIFFERENT OR IN CONTRADICTION TO THE TERMS AND CONDITIONS SET FORTH HEREIN ARE HEREBY REJECTED BY SELLER AND SHALL BE DISREGARDED IN THEIR ENTIRETY.

1. Freight Routing, Risk of Loss, Delays. All goods and materials (collectively the “Goods”) purchased pursuant to the purchase agreement or order (the “Order”) shall be delivered by Seller to Buyer’s business from which Goods were ordered, unless otherwise specified on the face of the Order. Unless otherwise indicated on the face of the Order, title, liability for, and risk of loss as to such Goods shall pass to Buyer upon shipment from Seller. Buyer’s payment of the purchase price for the Order shall be deemed acceptance of all of the terms and conditions set forth herein. Prior to delivery of the Goods, if Seller has reason to believe that it will be unable to meet its delivery schedule, it shall immediately notify Buyer in writing, shall indicate the cause of delay, shall use its best efforts to cure the anticipated delay, and permit Buyer to engage in paying an expediting fee. Upon receipt of notice of the anticipated delay or upon occurrence of an actual delay, Buyer may pay an expediting fee established by Seller and direct expedited routing of Goods, or Buyer shall accept the Goods upon the delayed delivery date.
2. Packaging. Goods to be furnished for this order shall be shipped by Seller in accordance with Seller’s standard shipping practices at Seller’s producing locations. Buyer shall pay the costs of any specialized packing, crating, freight express, or cartage requested by Buyer, as may be required by law, or if the Goods require specialized packaging. Seller’s weight and count calculations are conclusive, and Buyer agrees to pay for Goods delivered in excess of the quantity ordered.
3. Inspection. After receipt of Goods, Buyer shall have 10 days to inspect the Goods. Payment for Goods shall constitute acceptance of all of the Goods. Acceptance of some of the Goods will be deemed acceptance of all of the Goods. Buyer must notify Seller in writing within 15 days after receipt of the Goods of any non-conformance or rejection of all or a part of the Goods. Buyer shall be responsible for the cost of shipment to Seller of any non-conforming or rejected Goods. Upon receipt of the non-conforming Goods, Seller will inspect such Goods to determine whether the Goods are non-conforming through no fault of Buyer. If Seller concludes that the Goods are non-conforming through no fault of Buyer, Seller will ship replacement Goods to Buyer in accordance with the terms and conditions herein, at Seller’s cost. Buyer may, at its option, purchase substitute Goods in lieu of rejected Goods, and Buyer shall pay any difference in the cost of such Goods.
4. Warranty. Seller warrants only to Buyer that the Goods meet Seller’s standard specifications for such Goods as in effect on the date of shipment or such other specifications as are expressly agreed to in writing on the face of this Order. Seller warrants only to Buyer that the use or sale of the Goods do not, to Seller’s knowledge, infringe upon the claims of any validly issued United States patent covering the Goods themselves. Except as expressly stated in the preceding sentences, Seller makes no express or implied warranty (including, without limitation, the warranties of merchantability, fitness for a particular purpose or arising from any course of dealing or trade usage) regarding the Goods. Seller does not warrant against infringement of any filed or pending intellectual property rights due to the use of the Goods in combination with other products or materials, or in the operation of any process, or the compliance by Buyer, with any specifications provided to Buyer by Seller. Buyer, having the expertise and knowledge of the intended use of the Goods and any products made therefrom, assumes all risk and liability for results obtained by the use of the Goods, whether used alone or in combination with other materials.
5. Notice of Claim. Failure of Buyer to give notice of any claim in respect of the Goods within 90 days from the date of delivery of the Goods, or the date fixed for delivery in the case of non-delivery, shall constitute a waiver by Buyer of all claims in respect of the Goods delivered or not delivered, as the case may be. The Goods shall not be returned to Seller without written confirmation by Seller, and then only in the manner specified by Seller. Any claims of Buyer may be setoff from any amount due and payable to Seller.
6. Proprietary Rights. Buyer shall defend and hold Seller harmless against all liability, loss and expense (including legal fees and costs) arising out of any claim of infringement or misappropriation of (i) any patent covering the Goods or use thereof, or the process for making the Goods, (ii) any copyright, trademark, trade secret, or other proprietary right.
7. Confidential Information. Any information furnished to Buyer relating to or as a result of this Order shall be considered confidential unless otherwise agreed to by Seller in a separate written agreement. All information supplied by Seller shall be held in confidence by Buyer. Such information shall not be reproduced, used, or disclosed to others by the Buyer without Seller’s prior written consent, and shall be returned to Seller upon Seller’s demand for return of such information.
8. Remedies. Buyer’s exclusive and sole remedy for any claim shall be a refund of the amount of the purchase price paid for the Goods. In no event will Seller’s liability exceed the purchase price paid by Buyer for the Goods. Neither party shall be liable to the other party for special, indirect, incidental, punitive, or consequential damages. Each party acknowledges and agrees that any breach by the party receiving confidential information, including, without limitation, the actual or threatened disclosure of confidential information without the prior express written consent of the disclosing party, would cause the disclosing party to suffer irreparable harm, against which remedies at law would provide incomplete protection and inadequate compensation. Accordingly, the parties understand and agree that in the event of any breach or threatened breach of confidentiality, the non-breaching party, in addition to any other remedies at law or in equity it may have, is entitled to equitable relief, including injunctive relief as well as any additional relief that may be granted by a court of competent jurisdiction, without the necessity of posting a bond or proving actual damages. Each party hereby agrees to indemnify and hold harmless the non-breaching party and its respective successors and assigns from any damage, loss, cost or liability (including reasonable attorneys’ fees and expert witnesses’ fees and the cost of enforcing this indemnity) arising out of or resulting from any unauthorized use or disclosure by the breaching of confidentiality.
9. Advertising. Buyer shall not use the name, trade name, trademarks, service marks, or logos owned by Seller in any publicity releases, news releases, annual reports, product packaging, signage, stationery, print literature, advertising or websites without securing the prior written approval of the Seller. Buyer shall not, without prior written consent of Seller, represent, directly or indirectly, that any product or service offered by Buyer has been approved or endorsed by Seller. If Seller approves the use of its exclusive trademark, Buyer will reproduce the trademark distinctively, accurately, and consistently. Seller reserves the right to review and provide final approval of any material produced with approved use of the Seller’s brand name, registered trademarks, service marks, or logos.
10. Labeling & Literature. Buyer acknowledges that it has received and is familiar with Seller’s labeling and literature related to the Goods. Buyer will provide all applicable labeling and literature information to Buyer’s employees, agents, and end-user customers, who may handle, process, sell, or use the Goods and advise such parties to familiarize themselves with such information and include it in any product in which all or a portion of the Goods are used.
11. Technical Service & Information. Any assistance provided by Seller upon Buyer’s request may be subject to an applicable technical service fee paid to Seller by Buyer within 30 days after Seller provides such technical service or information.
12. Compliance with Laws; Foreign Corrupt Practices Act. The parties will comply with all laws, ordinances, rules, and regulations applicable in connection with this Agreement. The parties will assist each other in complying with any governmental agency orders or rules. Each party represents that it has not offered, given, promised to give, or authorized giving, and will not offer, give, promise to give, or authorize giving, directly or indirectly, any money or anything else of value to any government official, political party, political official, or candidate for political office in connection with any of its activities.
13. Taxes and Other Fees. Buyer shall pay outright or shall reimburse Seller for all taxes, licenses, or other charges or fees (other than taxes based upon Seller’s income) which Seller may be required to pay by law in connection with the shipment and delivery of the Goods hereunder.
14. Payment Terms and Breach. Buyer shall be deemed to be in breach of the Order if Seller fails to receive the purchase price within 15 days after the invoice date. If Buyer fails or refuses to pay Seller in full, or if Seller doubts Buyer’s financial responsibility at any time, Seller may, without advance notice to Buyer, (i) cease or decline making any shipments or deliveries to Buyer, except upon payment of all arrearages and advance payment of all future orders; (ii) terminate the Order; and (iii) charge interest on any amount owed at the rate which is the lesser of either the 3 month LIBOR rate plus 10% per annum, or the highest permissible interest rate allowed by law.
15. Goods Made to Order. Buyer acknowledges that Seller manufactures the Goods Buyer orders for purchase on a “made to order basis” especially for Buyer. If this Order is suspended or terminated for any reason, Buyer will take delivery of and make payment for the Goods as have been completed by Seller. If Buyer is unable to accept delivery of the Goods, Buyer will make payment for such Goods as though delivery has been made. Seller will store such Goods for Buyer’s account and at Buyer’s expense until Buyer sends Seller written notice that Buyer has abandoned the Goods. Seller will invoice Buyer for the cost of storage on a monthly basis. A late fee equal to 9% of the storage cost will be assessed monthly.
16. Force Majeure. No liability shall result from delay in performance or non-performance, directly or indirectly caused by circumstances beyond the control of the party affected (“Force Majeure”), including but not limited to, Act of God, fire, explosion, flood, war, action by or authorized by any government, accident, labor trouble, strike, or shortage, equipment failure, inability to obtain raw material or packaging supplies, inability to obtain fuel, power, material, equipment or transportation, or commercial impracticability. A party requesting relief under Force Majeure shall provide the other party 30 days written notice and the parties will negotiate in good faith to amend this Order or future orders. If an agreement cannot be reached, the parties will agree to terminate any existing but not yet completed orders and all future orders until an agreement can be reached. Quantities of Goods so affected may be eliminated from this Order without liability. Seller has no obligation to purchase supplies or the Goods from another source to fulfill this Order. Seller may distribute its available supply of Goods among any or all purchasers, business units, affiliates, or subsidiaries in Seller’s sole discretion.
17. Termination of Order. Seller may immediately terminate the Order if Buyer is in breach of any term of the Order or any of the terms or conditions set forth herein upon written notice to Buyer. Upon receipt of the notice of automatic termination by Seller, Buyer shall preserve, protect, and deliver to Seller at Buyer’s expense, any Goods on hand according to Seller’s instructions regarding disposition and return of Goods.
18. Severability. If any provision herein is void, invalid, unenforceable or prohibited by any law, such provision shall be deemed severed from this Order to the extent of such prohibition. The remaining provisions hereof shall remain binding upon the parties.
19. Deliverables and Works Made for Hire. All ideas, strategies, concepts, processes, plans, reports, and other materials and information (“Intellectual Property”) prepared or developed by Buyer in connection with the Goods are works made for hire for Seller within the meaning of the United States Copyright Act and are the exclusive properties of Seller. To the extent the Intellectual Property or any part thereof are not works made for hire, Buyer hereby grants to Seller a non-exclusive, perpetual license to use such Intellectual Property.
20. Insurance. Buyer shall carry and maintain in force at all times during the Order (i) worker’s compensation insurance in compliance with all applicable statutory requirements, (ii) business automobile liability insurance with loss limits not less than $500,000 per occurrence, and (iii) occurrence-based commercial general liability insurance with loss limits that cover all reasonable risks associated with Buyer’s business and services (not to be less than $500,000).
21. Indemnity. Buyer agrees to indemnify, defend, and hold harmless Seller; Seller’s parents, subsidiaries, and affiliated entities; and their respective agents and employees from and against any and all claims, losses, damages, liability, or liens to the extent arising from (i) Buyer’s negligent, reckless, or intentionally wrongful acts or omissions or (ii) Buyer’s breach of any term or condition of this Order or the invalidity or inaccuracy of any representation or warranty of Buyer herein.
22. Survivability. The terms and conditions herein shall survive the expiration or termination of the Order.
23. Applicable Laws. The laws of the State of Missouri, USA shall govern if any dispute arises hereunder, without regard to choice of law or conflicts principles of Missouri or any other jurisdiction, and the parties consent to the jurisdiction of the courts of St. Louis County, Missouri for the determination of any disputes arising under this Order. This Order will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
24. Assignment. This Order is not assignable or transferable by either party without the prior written consent of the other party.
25. Price. If the price is omitted in this Order, the Goods shall be billed at the then-prevailing market price. Seller may revise prices at any time upon 30 days written notice. In such event, Buyer may elect to purchase Goods for delivery at the prices in effect immediately prior to such increase within the 30-day period, provided that the requested volumes are commensurate with Buyer’s average monthly purchases for the preceding calendar quarter.
26. Amendment. No amendment, modification, supplement, termination, consent, or waiver of any provision of this Agreement will be effective unless it is in writing.
27. Legal Fees. All legal and other costs and expenses incurred for this Order are to be paid by the party incurring such costs and expenses. In the event any party brings suit to construe or enforce the terms hereof, or raises this Order as a defense in a suit brought by another party, the prevailing party is entitled to recover its reasonable attorneys’ fees and expenses.
28. Severability. If any provision of this Order is prohibited, unenforceable or not authorized in any jurisdiction, such provision shall be amended or deleted without invalidating the remaining provisions hereof, or affecting the validity, enforceability, or legality of such provision and the rest of the Order in any other jurisdiction, unless the ineffectiveness of such provision would result in such a material change as to cause completion of the transactions contemplated hereby to be unreasonable.
29. No Waiver. Failure by either party to require performance by the other party or to claim a breach of any provision hereof shall not be construed as a waiver of any right arising from or under the Order, including the right to require subsequent performance or contest any subsequent breach.
30. 30. Entire Agreement. The terms and conditions herein and this Order constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous proposals, both oral and written, negotiations, representations, commitments, writings and all other communications between the parties.