Sales Order Terms and Conditions

These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (the “Goods”) by Cordica Medical, Inc. a Tennessee corporation, or any of its wholly owned subsidiaries Inc., (“Seller”) to the person or entity purchasing the Goods (“Buyer” and, together with Seller, the “Parties” and each individually a “Party”). Notwithstanding anything herein to the contrary, if a written contract signed by both Parties is in existence with respect to the sale of the Goods, in the event of any conflict or inconsistency between these Terms and the terms of such contract, the terms of such contract govern.

The accompanying (i) purchase order, (ii) invoice, or (iii) quote (each, a “Sales Confirmation” and together with these Terms, this “Agreement”) comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral with respect to the Goods. In the event of any conflict between these Terms and any of Buyer’s general terms and conditions of purchase or any other document or communications pertaining to Buyer’s order of Goods, these Terms govern. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

Seller reserves the right to accept or decline, in whole or in part, any order placed by Buyer. An order received from Buyer is deemed binding from the point of order regardless of confirmation from Seller.

Seller’s acceptance of Buyer’s purchase order is expressly made conditional on Buyer’s acceptance of these Terms. Buyer’s assent to these Terms shall be conclusively presumed from Buyer’s acceptance of all or any part of the Goods or from payment by Buyer for all or any part of the Goods.

Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of invoice (the “Payment Period”).

Any delinquent payment not made during the Payment Period will be subject to a late payment charge the rate of 12% per annum or the highest rate permissible under applicable law, whichever is higher, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any delinquent payments, including, without limitation, attorneys’ fees. If such a payment default occurs, in addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller may also (i) suspend performance, (ii) change the payment terms to require cash prior to delivery or (iii) terminate any outstanding agreements, including partial orders, between Buyer and Seller. Any payment disputes must be made to Seller by Buyer in writing within ten (10) business days after receipt of the applicable invoice.

Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

If, in Seller’s sole judgement, Buyer’s financial condition or any other circumstance causes Seller to be insecure with Buyer’s performance of any obligation under these conditions set forth, Seller may, in addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), (i) demand immediate payment of all amounts owing from Buyer to Seller on any account, (ii) suspend performance, (iii) change the payment terms to require cash prior to delivery and (iv) terminate these Terms and any outstanding agreements, including partial orders, between Buyer and Seller.

Delivery terms are F.O.B. Seller’s plant (the ”Delivery Point”) and Seller shall use Seller’s standard methods for packaging and shipping the Goods. Buyer shall be responsible for all packaging and loading costs and shall provide equipment and labor reasonably suited for delivery of the Goods at the Delivery Point.

Delivery dates are determined from the date of Seller’s acceptance of Buyer’s order, subject to availability of finished Goods, and are estimates of approximate dates of delivery, not a guaranty of a particular date of delivery. Seller shall not be liable for any delays, loss or damage in transit.

If for any reason Buyer fails to accept delivery of any of the Goods at the Delivery Point, then (i) risk of loss to the Goods shall pass to Buyer, (ii) the Goods shall be deemed to have been delivered and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

Buyer shall be deemed to take possession of the Goods upon shipment of the Goods.

All shipments shall be delivered by Seller to Buyer’s designated point of delivery at Buyer’s expense. Seller shall issue a separate invoice for each separate shipment.

Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s Sales Confirmation.

If Buyer requests deferral of shipment, and if Seller agrees to such deferral, Seller’s agreement to defer shipment shall not excuse Buyer from its obligation to pay for the Goods at the same time and in the same quantities as the original delivery schedule. In addition, Buyer shall be obligated to pay all costs and expenses (including, without limitation, storage charges) as Seller may incur in connection with the Goods awaiting delivery.

Title and risk of loss passes to Buyer upon shipment of the Goods from the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Tennessee Uniform Commercial Code.

Buyer shall inspect the Goods within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only that (i) product shipped is different than identified in the applicable Sales Confirmation or (ii) product’s label or packaging incorrectly identifies its contents.

If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at Seller’s expense and risk of loss, the Nonconforming Goods to the address provided by Seller to Buyer in connection with the return authorization process.

If Seller exercises its option to replace any Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Point.

Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s sole and exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 7(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

Buyer shall purchase the Goods from Seller at the price agreed upon between Seller and Buyer as set forth in the Sales Confirmation (the “Price”). Typographic or other errors set forth in the Sales Confirmation are subject to correction.

If the Price should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased price were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased price.

Any sales, use and excise taxes, and any other taxes, duties, tariffs and charges of any kind imposed by any governmental authority on any amounts payable by Buyer and included by Seller in the Price shall be separately stated on the invoice provided to Buyer.

Quantities submitted on an individual purchase order by Buyer may not be changed without the prior written approval of Seller and Buyer. Individual purchase order quantities cannot be adjusted or cancelled less than thirty (30) days prior to Seller’s anticipated date of shipment of the Goods. Buyer agrees to accept and consider an order completed with a 10% variance from the amount specified on the Customer's Purchase Order. The amount billed the Customer will reflect the actual quantity shipped.

In the event that Buyer cancels any purchase order in violation of this Section 10, Buyer shall pay to Seller a fee in the amount of 25% of the amount that was to be purchased pursuant to such purchase order.

Seller warrants to Buyer that for a period of three (3) months from the date of shipment of the Goods (“Warranty Period”), that such Goods will be free from material defects in material and workmanship and be fit for the intended use of Buyer.

EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY, (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iii) WARRANTY OF TITLE OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 11(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY, (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iii) WARRANTY OF TITLE OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

Seller shall not be liable for a breach of the warranty set forth in Section 11(a) unless (i) Buyer gives written notice of the defect, reasonably described, to Seller within ten (10) days of the time when Buyer discovers or ought to have discovered the defect, (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.

Seller shall not be liable for a breach of the warranty set forth in Section 11(a) if (i) Buyer makes any further use of such Goods after giving such notice, (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.

Subject to set forth in Section 11(d) and Section 11(e), with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate; provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.

THE REMEDIES SET FORTH IN SECTION 11(f) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).

IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE PRICE FOR THE GOODS SOLD PURSUANT TO THIS AGREEMENT IN THE PAST 6 MONTHS.

Proper Use of Products: Buyer is solely responsible for determining the suitability of Products for the intended use including any necessary safety or toxicity assessment. Buyer acknowledges and agrees that Seller has had no role in the design of Products, nor had any role in determining the suitability of Products for use in the Seller's device(s) or for any purpose intended by the Seller. Buyer will not process or package the Products in any way which might compromise the Products' efficacy or safety.

Orders accepted by Seller cannot be terminated or modified, and shipment may not be deferred by Buyer, without the prior written consent of Seller. In the event a cancellation is approved by Seller then, unless otherwise agreed, Buyer shall pay Seller (i) all costs expenses and liabilities Seller incurred in relation to the order before Seller accepted the cancellation request, (ii) a cancellation charge equal to 25% of the invoice price of any goods cancelled from the order, and (iii) any shipping charges and other out of pocket expenses incurred by Seller in relation to the cancellation

In addition to any remedies that may be provided under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer (i) fails to pay any amount when due under this Agreement, (ii) has not otherwise performed or complied with any of these Terms, in whole or in part or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

None of these Terms may be supplemented, deleted, modified, superseded or altered, except by written communication signed by an authorized representative of Seller. Failure of Seller to object to any terms or conditions which may be contained in any document or form from Buyer shall not be construed as acceptance of any such terms and conditions.

Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

Except as otherwise provided in this Agreement, this Agreement, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns, heirs, executors, administrators and legal representatives. This Agreement shall not be assignable by either party without the prior written consent of the other party; provided, however, either party may assign or transfer this Agreement without such consent to a successor to all or substantially all of its business or assets to which this Agreement relates, whether by way of merger, consolidation, sale of stock, sale of assets, operation of law, or otherwise.

The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule (whether of the State of Tennessee or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Tennessee.

Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America located in the State of Tennessee in the City of Greeneville and the County of Greene or the courts of the State of Tennessee located in the City of Morristown and County of Hamblen, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), certified or registered mail (in each case, return receipt requested, postage prepaid) or e-mail. Except as otherwise provided in these Terms, a Notice is effective only (i) upon receipt of the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this paragraph.

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.

Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.

During the term of this Agreement, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, reasonable commercially reasonable levels of general liability insurance (including product liability) with financially sound and reputable insurers. Upon Seller's request, Buyer shall provide Seller with a certificate of insurance from Buyer's insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Seller as an additional insured. Buyer shall provide Seller with thirty (30) days' advance written notice in the event of a cancellation or material change in Buyer's insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller's insurers and Seller.

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Seller’s failure at any time to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement does not operate, nor may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Seller reserves the right to amend or supplement these Terms at any time.