RefleXion Medical, Inc. Supplier Terms and Conditions of Sale

 

General Terms. These Supplier terms and conditions of sale (“Terms”) and the purchase order (“Purchase Order”) generated by RefleXion Medical, Inc. (“RefleXion”), together with any specifications, schedules, exhibits or amendments which may be attached hereto by the supplier, sets forth the complete and entire agreement (“Agreement”) between the person or entity who wishes to perform or supply products or services (“Supplier”) to RefleXion. The terms “products and services” shall refer to the materials, supplies, components, items, equipment, work and/or services covered by this Agreement.

Conflict of Terms. These Terms provided by RefleXion to Supplier are intended as an offer to purchase the products or services specified on the face of Supplier’s contract proposal or similar form hereof, upon the terms and conditions stated herein, and any reference to the Supplier’s contract proposal or similar form is solely for the purpose of describing the materials unless such contract proposal, quotation, invoice, acknowledgement or other writing is attached by RefleXion to these Terms and/or such contract proposal terms and conditions are expressly accepted and referenced by RefleXion herein. Supplier agrees to accept and be bound by the Agreement by receiving the Purchase Order that reference these Terms. This Agreement is the complete and exclusive contract between Supplier and RefleXion with respect to the purchase of such products or services. Notwithstanding the foregoing, if a fully executed written agreement (whether Services Agreement, Order Form, Lease Agreement, or the like) between RefleXion and Supplier is in full force and effect with respect to the subject matter referenced herein, then the terms of such agreement shall govern, and any conflicting terms of these Terms shall be inapplicable.

Confidentiality of Information.  Supplier agrees to keep confidential and not to disclose to third parties any information provided by RefleXion pursuant to, or learned by Supplier during the course of, this Agreement unless Supplier has received the prior written consent of RefleXion to make such disclosure. This provision shall survive expiration and termination of this Agreement. This obligation of confidentiality does not extend to any information that: 1) was in the possession of Supplier at the time of disclosure by RefleXion; 2) is or shall become, through no fault of Supplier, available to the general public; or 3) is independently developed and hereafter supplied to Supplier by a third party without restriction of disclosure.

Company Data, Systems and Facilities. For any data provided by RefleXion in connection with the products or services (“RefleXion Data”), Supplier will (a) use the RefleXion Data solely as necessary to provide the products and services to RefleXion and for no other purpose, (b) use industry standard safeguards (at technical, administrative and physical levels) that protect the RefleXion Data from unauthorized disclosure, (c) promptly notify RefleXion of any security breach affecting RefleXion Data, and (d) upon termination or expiration of the Agreement, make available the RefleXion Data to RefleXion for download and thereafter destroy all RefleXion Data in Supplier’s possession or control. If Supplier has access to RefleXion systems or facilities, Supplier will follow RefleXion’s relevant privacy, safety and security policies.

Warranties.  Supplier expressly warrants that all of the products and services and any deliverables provided hereunder: (a) will conform to any final specifications, drawings, plans, or instructions furnished by RefleXion and agreed to by Supplier; (b) will be fit and sufficient for the purpose(s) for which they were manufactured and sold, and if Supplier knows or has reason to know of any other particular purpose for which RefleXion intends to use such products and services, such products and services will be fit for such particular purpose; (c) will be new and merchantable; and (d) will be of good material and workmanship and free from material defects. Supplier will correct and repair, at no cost to RefleXion, any defect, malfunction or non-conformity that prevents any deliverable from conforming and performing as warranted. Supplier warrants and represents that it will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former client, employer or third party in the performance of the products and services purchased by RefleXion. Supplier hereby extends to RefleXion any and all warranties received from Supplier’s suppliers and agrees to enforce such warranties on RefleXion’s behalf. All of Supplier’s warranties shall run to RefleXion and its successors, assigns and users of products and services sold hereunder. The foregoing warranties and remedies shall be in addition to any warranties and remedies of additional scope herein or otherwise provided by Supplier to RefleXion or otherwise provided by law, including, without limitation, any and all warranties provided in the Uniform Commercial Code. Supplier shall compensate, indemnify and hold RefleXion harmless from and against any and all damages, including incidental and consequential damages, claims, liabilities and expenses (including court costs and attorneys’ fees) arising out of or relating to or resulting in any way from a breach of any warranty herein, whether express or implied.

Fees.  Supplier will be paid monthly in arrears thirty (30) days after receipt of invoice detailing products and services that have been successfully provided to RefleXion.  Supplier must submit such invoice to RefleXion within thirty (30) days following the end of the month in which products and services were completed. RefleXion does not agree to automatic renewals. Supplier shall give no less than sixty (60) days’ written notice prior to the end of any annual period of Service to RefleXion of any price increase, provided in no event shall the annual rate exceed 3% of the rate for the immediately preceding year.

Insurance.  Upon request from RefleXion, Supplier shall furnish to RefleXion an insurance carrier’s certificate showing that Supplier has adequate Workmen’s Compensation, General Liability and Property Damage insurance coverage. Said certificate shall set forth the amount of coverage, policy number and date of expiration. Supplier shall maintain 1) Commercial General Liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate covering any and all damage to property or injury to or death of persons arising from or out of installation and/or operation of any Products sold hereunder and/or performance of any work or products and services hereunder; 2) Excess or Umbrella Liability insurance extending over the required Commercial General Liability and Employer’s Liability in an amount not less than two million dollars ($2,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate; and 3) Worker’s Compensation insurance as provided by statute. If requested by RefleXion, Supplier shall furnish a certificate of coverage and warrant that the same levels of coverage shall be maintained annually. Supplier’s insurance coverages will apply on a primary and non-contributory basis to those of RefleXion.

Indemnification.  To the fullest extent permitted by law, Supplier shall defend, indemnify and hold harmless RefleXion, its officers, employees, contractors, current and former trustees, agents and representatives from and against any and all claims, demands, damages, liabilities, expenses, losses of every nature and kind, including but not limited to attorney’s fees and costs, (collectively, “Claims”) arising out of the intentional misconduct or grossly negligent acts or omissions in the performance hereunder by Supplier, its agents, employees, and subcontractors, or Supplier’s failure to render products and services in compliance with this Agreement, even in the event RefleXion is alleged to be partially negligent.

Limitation of Liability.  NETIHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING FROM ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS PARAGRAPH IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF ANY PARTY, OR DAMAGES AVAILABLE FOR BREACH OF THE CONFIDENTIALITY OBLIGATIONS CONTAINED IN THIS AGREEMENT.

Names and Trademarks.  Supplier shall not, without express written consent in each case, use any name, trade name, trademark, or other designation of RefleXion hereto (including contraction, abbreviation or simulation) in advertising, publicity, promotional, or any other activities or context.

Compliance with Laws/Policies.  Supplier warrants that it will comply with all federal, state and local laws as well as RefleXion policies applicable to its performance hereunder, including but not limited to those relating to nondiscrimination, equal employment opportunity, and affirmative action.

Audit Cooperation. RefleXion may request Supplier’s cooperation in any official or unofficial audit or inspection related to this Agreement and will indemnify and hold RefleXion harmless from, or in connection with, Supplier or Supplier’s subcontractors’, consultants, agents’, or employees’ violation of any applicable law or regulation.

Non-Waiver.  Either party’s failure to insist upon the performance of any term of this Agreement shall not be construed as a waiver of that party’s present or future right to such performance and each Party’s obligations in respect thereto shall continue in full force and effect.

Notice.  Any notice under this Agreement shall be in writing and be delivered in person or by public or private courier services or certified mail with return receipt requested or by email with return response required. All notices shall be addressed to the parties at such addresses as the parties may from time to time direct in writing. Any notice shall be deemed to have been given on the earlier of: (a) actual delivery or refusal to accept delivery, (b) the date of service by certified mail, or (c) the day email delivery is verified. Actual notice, however, and from whomever received, shall always be effective.

Ownership.  Any and all works created by Supplier pursuant to this Agreement (the “Works”) shall be deemed works made for hire and all rights pertaining to the Works, including, without limitation, all copyrights, shall belong to and shall be the sole and exclusive property of RefleXion. Supplier shall also execute all papers and perform all such other acts as RefleXion may deem necessary to secure for RefleXion or its designee all such rights herein assigned. This provision shall survive expiration and termination of this Agreement.

No Authority.  Supplier is an independent contractor, free of control or supervision by RefleXion as to the means or manner of performing such work. Supplier shall have no authority to take any action, create any obligation, make any commitment, incur any indebtedness, or enter into any agreement that binds RefleXion. Supplier shall not in connection with any services provided to or on behalf of RefleXion represent to any person or entity that Supplier is associated with RefleXion in any capacity other than that of an independent contractor.

Severability.  The terms of this Agreement are severable such that if any term or provision is declared by a court of competent jurisdiction to be illegal, void, or unenforceable, the remainder of the provisions shall continue to be valid and enforceable.

Term and Termination.  This Agreement is effective on the Effective Date and will terminate on the date stated on such Supplier Contract.  If no termination date is stated, this Agreement shall expire twelve (12) months from the Effective Date, unless terminated earlier, as provided herein. RefleXion reserves the right to terminate this Agreement at any time with thirty (30) days notice for any reason or no reason.

Force Majeure.  In the event that either party is unable to perform its obligations under this Agreement as a result of a force majeure, neither party shall be liable to the other for direct or consequential damages resulting from lack of performance. “Force Majeure” shall mean fire, earthquake, flood, act of God, strikes, work stoppages, or other labor disturbances, riots or civil commotions, acts of terrorism or other hostilities, litigation, war or other act of any foreign nation, power of government, or governmental agency or authority, or any other cause like or unlike any cause above mentioned which is beyond the control of either party.

Assignment.  Supplier may not assign or delegate its rights and obligations under this Agreement or any part hereof without the prior written consent of RefleXion.

Governing Laws/Venue.  All disputes regarding the construction, interpretation and the parties’ obligations under this Agreement shall be governed by the laws of the State of California, notwithstanding the effect of any choice of law rules. The venue and jurisdiction for the resolution of any such disputes shall be in the State or Federal courts located in the state of California.

Entire Agreement.  This Agreement constitutes the entire agreement and there are no oral or other representations regarding the subject of this Agreement that are binding on either party. All changes to this Agreement must be in writing, signed by RefleXion and Supplier.