General. MyHealthcareKit LLC’s purchase order (“Order”), together with the agreements, specifications or other documents noted therein, if any (“Additional Documents”) and including these terms and conditions (the foregoing Order, Additional Documents and all of these terms and conditions of purchase are collectively referred to herein as the “Contract”), constitutes the COMPLETE AND FINAL AGREEMENT of MyHealthcareKit LLC (“Buyer”) and the vendor or seller to whom Buyer’s Order is addressed (“Seller”) and may not be added to, modified, superseded or altered except by written agreement or modification signed by Buyer’s authorized representative, notwithstanding any additional or other proposals or terms and conditions which may now or in the future appear on Seller invoices, quotations, acknowledgment or other forms (notification of objection thereto being given hereby), and notwithstanding any acceptance of shipments, payments or other similar acts of Buyer. Any shipment, delivery or other tender of performance of Seller shall be taken as Seller’s assent to and acceptance of the Contract. In the event of any conflict between these Contract terms and any of the Additional Documents, if any, these Contract terms shall control.

Performance. Buyer shall have the right at any time to change its Order as to specifications, delivery, packaging or means of shipments. Seller’s receipt of Buyer’s notice of change without response received from Buyer or shipment or other performance reflecting the change by Buyer within ten (10) days, whichever occurs first, shall be Seller acceptance of the change without any price or other adjustment to the applicable Order. Seller shall make no change in the goods or any material, services or labor covered by any Order (all, whether or not physical property or goods, the “Goods”), whether by change in or departure from specifications, by change in design, manufacture, process, machinery, dies and molds, standard or method, or by change in material or composition, whether any such change is at the initiative of Seller or its supplier, without Buyer prior written consent. Time and quantity are the essence of any Order. Unless otherwise specified, delivery times specified are the times of delivery of the Goods at Buyer designated place of delivery or destination. Seller will pack, mail, label and ship all Goods in an appropriate and suitable manner selected by Seller which will ensure the lowest transportation cost for which Buyer is responsible, if any, in the absence of specific instructions contained herein. Buyer’s count of the Goods received will be final as to all shipments not accompanied by packing list. Seller will inform Buyer immediately of any occurrence which will or is expected to result in any delivery at any time or in any quantity not specified in the Order and also of corrective measures which Seller has taken to minimize the effect of such occurrence.  In the event any such deviation result in an adverse effect to Buyer, Buyer may terminate the affected and any other outstanding Order without liability to Seller. Seller may not assign any Order or payment of any sums due thereunder. To the extent that, in connection with the Goods or otherwise, Seller employees, associates, consultants, agents or other representatives (“Seller Agents”) are on or present at any premises of Buyer, Seller shall be and is responsible for the acts and omissions of Seller Agents within or about Buyer premises and agrees to defend, indemnify and hold Buyer harmless from and against all liability for any claims or damages to property or injuries or death to persons arising out of acts or omissions of Seller Agents at Buyer premises, including without limitation (1) the failure of any of Seller Agents to comply with all applicable rules and regulations (Buyer and otherwise) governing security, maintenance and safety at or about Buyer premises, (2) any claim against Buyer by or on behalf of any of Seller Agents for injury or otherwise, or (3) any claim against Buyer resulting from Seller failure to maintain workers compensation or other public or private insurance with respect to any of Seller Agents. Seller hereby agrees to defend, indemnify and hold Buyer harmless from and against any and all threatened or actual actions, claims or proceedings, howsoever arising, whether sounding in tort, contract, warranty or otherwise, and all costs and expenses (including without limitation court costs and reasonable attorney’s fees, whether or not suit is commenced), arising out of or relating to: (a) the Goods; (b) Seller performance of any Order; (c) Seller breach of any term, provision, covenant, representation, warranty or obligation set forth in the Order or this Contract; (d) any claim asserted against Buyer alleging that Buyer use or sale of the Goods infringes any third party rights in or to any intellectual property (including any trade name, trademark, trade secret, copyright and/or patent); and (e) any claim asserted against Buyer by any third party alleging unfair competition by reason of Buyer use or sale of the Goods. Buyer liability on any claim of any kind for loss or damage arising out of or in connection with or resulting from any Order or from the performance or breach thereof, shall in no case exceed the price allocated to the Goods which gives rise to the claim. In no event shall the Buyer be liable for any cover damages, loss of profits, indirect, incidental, punitive, liquidated, special or consequential damages, howsoever arising, even if the other party has been advised of the possibility of such damage.

Seller Warranties. Seller warrants that the Goods, including material and work, furnished under any Order shall be of the highest grade and quality unless otherwise specified by Buyer in writing; shall not be less than merchantable and fit for the particular purpose(s) known by or disclosed to Seller as applicable thereto; shall meet specifications, drawings, or standards agreed upon or samples submitted or approved by Buyer; and shall conform to the Order and any Additional Documents. Seller warrants that the Goods will comply with all applicable federal and state laws and will be in compliance with all standards and agreements incorporated and made a part of all Orders. Payment by Buyer shall not constitute an acceptance of Goods or a waiver of any rights of Buyer under this Contract. In the event that any Goods are not in compliance with any state or federal law or regulation or not in compliance with any agreement or standard incorporated in this Contract, now existing or hereafter enacted or amended, or are otherwise defective, Buyer may (without limitation or exclusion of any other right of Buyer) return the defective Goods to Seller, who will refund and return to Buyer its cost plus freight to Buyer warehouse or facility and freight for return to Seller or (at Buyer option) repair or correct or replace the defective Goods at Seller cost and expense.

Prices, Taxes, Transportation, Payment. All prices shall be F.O.B. place of delivery (destination), unless otherwise specified herein; inclusive of applicable taxes, excises, duties, quotation fees or any other governmental impositions on or related to the production, sale or transportation of the Goods, except as only otherwise specified herein; in compliance with any ceiling or other limitation of price established by any governmental authority; and subject to increase only with prior written consent of Buyer. The risk of loss and the duty to insure all Goods shall remain with Seller until the Goods are delivered to Buyer designated place of delivery. To the extent that any Goods under any Order are subject to sales tax, Seller shall be responsible for remitting such tax to the applicable taxing jurisdiction. In furtherance of the foregoing, Seller shall not include any allowance or amount for sales tax payments in calculating any payments due under any Order. Buyer and Seller will cooperate upon request in obtaining and furnishing such certificates or other evidence of inapplicability of or exemption from any sales, excise or other taxes to which either of the parties may be entitled. Unless otherwise specified in any Order, the price of the Goods shall be payable net sixty (60) days from the date of the Buyer acceptance of the Goods for which payment is to be made.

Force Majeure. Either Buyer or Seller may suspend performance during the occurrence of an excusable delay, which shall mean and include any delay not occasioned by the fault or negligence of the delayed party and which results from the acts of God or public enemy, restrictions, prohibitions, priorities or allocations imposed by governmental authority, embargoes, acts of terrorism, floods, fires, typhoons, earthquakes, pandemics, epidemics, unusually severe weather, delays of similar nature or governmental causes, and strikes or labor disputes (of or involving the delayed party employees only). Excusable delays do not include lockout, shortage of labor, lack of or inability to obtain raw materials, fuel or supplies or any other industrial disturbance. Nothing contained in this paragraph shall limit Buyer rights hereunder in any way, except that, in the event of Seller excusable delay, Seller shall not be liable for Buyer incidental or consequential damages resulting from that delay.

Advertising. Without Buyer prior written consent, Seller shall not advertise or publish in any manner that Seller has contracted to, or has furnished Goods to Buyer.

Termination. Buyer may at any time prior to delivery of the Goods terminate any Order in whole or in part by written notice, whereupon Seller shall terminate work pursuant to the terms of such notice and without any further liability of Buyer or Seller. If Goods ordered under any Order are made specifically for Buyer and cannot be sold to other purchasers, upon termination by Buyer, Seller shall promptly advise Buyer of the quantities of applicable work and material on hand or purchased prior to termination and the most favorable disposition that Seller can make thereof. Seller will comply with Buyer instructions regarding disposition of such work and material. All claims by Seller based on such termination must be asserted, in writing and in full, within ten (10) days from the date of notification of the termination, or order price of finished work and the cost to Seller, excluding profit or losses, of work in process and raw material less, however: (1) the agreed value of any items used or sold by Seller with Buyer consent and (2) the reasonable value or cost (whichever is higher) of any defective, damaged or destroyed work or material and any items sold or used by Seller without Buyer consent. Buyer will make no payment for finished work, work in process or raw materials fabricated or procured by Seller unnecessarily in advance or in excess of Buyer delivery requirements. The payment provided for in this clause shall constitute Buyer only liability in the event an Order is terminated as provided herein. The foregoing provisions of this section shall not apply to any termination by Buyer for default of Seller or under the following provisions of this section. To the extent this Order covers items normally carried in inventory by Seller (as distinguished from items specially made to Buyer specifications), Buyer shall not have liability for any termination of this Order, in whole or in part, prior to actual delivery Notwithstanding the foregoing, if Seller shall become insolvent or make a general assignment for the benefit of its creditors or if a petition in bankruptcy shall be filed by or against it, or any proceedings shall be instituted by or against it for any relief under any bankruptcy or insolvency laws, or if a receiver shall be appointed or its property or assets, Buyer may, by delivery of a written notice of termination to Seller, terminate any Order and this Contract in their entirety.

Inspection and Test. All Goods ordered shall be subject to final inspection and test by Buyer. Such inspection shall be made within a reasonable time after receipt, irrespective of day of payment, and any items which are not fully conform to this Order may be rejected by notice to Seller. Said rejected items are to be replaced with applicable conforming items within the fastest reasonable time after notice of rejection to Seller or, at the option of Buyer exercised by written notice, the quantity of Goods may be reduced by the number of rejected items.

Miscellaneous. All covenants and agreements contained in this Contract by or on behalf of any of the parties hereto shall bind and inure to the benefit of their respective successors and assigns whether so expressed or not, except that Seller shall have no right to subcontract any products or services to be provided under any Order, nor assign Seller’s rights or interest under this Contract without the prior written consent of Buyer. Any attempt by Seller to subcontractor or assign its rights or obligations hereunder without the prior written consent of Buyer shall be null and void.  No amendment, modification, termination or waiver of any provision of this Contract given pursuant or attendant hereto, and no consent to any departure by either party therefrom, shall in any event be effective unless the same shall be in writing and signed authorized representatives of both parties, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on Seller in any event, case or occurrence, shall of itself entitle Seller to any other or further notice or demand in any similar or other circumstances. The headings of the various sections of this Contract are solely for convenience and are not part of this Contract for purposes of interpreting the provisions hereof. Terms employed in this Contract, unless otherwise defined, shall be deemed to have the meanings set forth in the Pennsylvania Consolidated Statutes, specifically the Uniform Commercial Code as enacted therein. Unless otherwise specified, the terms “herein,” “hereunder,” “hereto,” “herewith,” and words of similar import refer to this entire Contract including any Order terms and conditions and any Additional Documents; the singular includes the plural, and conversely. This Contract and any other document or instrument delivered or to be delivered pursuant hereto shall be governed by and construed in accordance with the laws of the State of Pennsylvania applicable to contracts made and performed in the State of Pennsylvania without giving effect to any conflict of law provision or rule thereof that would result in the application of the laws of any other state. If any provision hereof is or becomes invalid or unenforceable under any law of mandatory application, it is the intent of the parties hereto that such provision will be deemed severed and omitted herefrom, the remaining portions hereof to remain in full force and effect as written. All notices or other communications required or permitted to be given hereunder shall be in writing emailed to Buyer at contact@myhealthcarekit.com. Unless exempt, Seller shall comply with all applicable laws including, without limitation, the Equal Opportunity clauses set forth in 41 CFR Section 60-1.4(a), 60-741(a) – (f), 60-250.4(a) and 29 CFR Part 471, Appendix A, Subpart A. A determination that any term of this Contract is invalid or unenforceable shall not affect the other terms hereof.

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