Therapak, LLC – Purchase Order Terms and Conditions for Products and Services

NOTE: IF SUPPLIER HAS AN UNEXPIRED DISTRIBUTION AGREEMENT THE TERMS AND CONDITIONS SET FORTH HEREIN DO NOT APPLY. PLEASE SEE SECTIONS 2 AND 4 FOR ADDITIONAL DETAILS.

  1. Definitions. The term “THERAPAK” shall refer to THERAPAK, LLC, a California limited liability company, and its, divisions, subsidiaries, and affiliates. The term “Supplier” shall refer to the vendor designated on the face of the purchase order issued by THERAPAK and shall also include Supplier’s employees, subcontractors, independent contractors and all other persons performing any type of work under the purchase order. The term “Product” or “Products” shall refer to the materials, supplies, items and equipment covered by the related purchase order and any pre-existing product supply agreement between the Supplier and THERAPAK. The term “Service” or “Services” shall refer to the work described in a related statement of work, purchase order, or similar instrument, and includes all necessary personnel, materials, services, equipment, facilities oversight, management and all other items necessary for the performance of the work. The term “Agreement” shall refer to an accepted purchase order which will then be subject to the terms and conditions as set forth herein. Other defined terms have the meanings given to them herein.

  2. Acceptance of Purchase Order. THERAPAK is currently or has previously communicated to Supplier a purchase order to purchase a quantity of products or services at a defined price and may have also included particular shipping instructions or other specifications required by THERAPAK. Except as provided in Section 4. Entire Agreement, all purchase orders are subject to and expressly conditioned upon the terms and conditions contained herein and upon Supplier’s assent thereto. The specific purchase order and all of the terms and conditions contained herein (including THERAPAK/VWR’s most recently published Routing Guide and International Delivery Requirements and Conditions, which are incorporated herein by reference) (to obtain a current copy, please call 1-800-877-9614) will be controlling, and any additional and/or inconsistent terms and conditions set forth in any acknowledgment or acceptance documents requested from and/or provided by Supplier are expressly objected to and rejected. No variation of these terms and conditions will be binding upon THERAPAK unless agreed to in writing and signed by an officer or other authorized representative of THERAPAK. Any conduct by Supplier which recognizes the existence of a contract pertaining to the subject matter hereof shall constitute an acceptance by Supplier of the purchase order and these terms and conditions. If a purchase order has been issued by THERAPAK in response to an offer or quotation by Supplier, and these terms and conditions are additional to or different from any terms of such offer, then the issuance of the purchase order shall constitute an acceptance of such offer subject to the express condition that Supplier assent to these additional and different terms and conditions, and Supplier shall have be deemed to have so assented unless Supplier notifies THERAPAK to the contrary in writing within ten (10) days of receipt of the purchase order.

  3. Changes. THERAPAK reserves the right at any time to change a purchase order in writing, and if such change causes an increase or decrease in price or delivery of Products or Services, an equitable written adjustment shall be made.

  4. Entire Agreement. Each purchase order issued by THERAPAK, including these terms and conditions which are incorporated into each purchase order by reference, as well as any specifications, exhibits or amendments that may be referred to or attached to that purchase order, sets forth the complete and final agreement between the parties with respect to the subject matter thereof, and supersede any and all prior or contemporaneous oral or written communications relating thereto.

  5. NOTE: If a purchase order is used as a release for goods or services under a pre-existing and non-expired distribution agreement between the Parties, then the terms and conditions of that agreement shall apply and take precedence over these terms and conditions.

  6. Grant of Distributorship. For Products purchased under this Agreement, Supplier hereby grants to THERAPAK, and THERAPAK hereby accepts, the non- exclusive right to promote, market, sell and distribute the Products throughout the world (the “Territory”). THERAPAK shall not be prohibited from promoting, marketing, selling and distributing other articles, including ones that compete with the Products, whether in the Territory or otherwise. THERAPAK shall have the right to appoint sub-distributors to promote, market, sell and distribute the Products in the Territory.

  7. Price. Supplier agrees to sell the Products or Services to THERAPAK at the price(s) set forth on the purchase order. Supplier shall be responsible for all domestic, foreign, state or local sales, use, value added or other taxes (excluding THERAPAK’s income and franchise taxes). Rates/prices for Services be fixed unless otherwise expressly provided on the purchase order or statement of work, whichever is applicable. Supplier shall bear the sole responsibility for payment of compensation to its personnel, including all health or disability insurance, retirement benefits, or other welfare or pension benefits.

  8. Invoices and Payment. Supplier shall invoice THERAPAK in the local currency of the THERAPAK affiliate purchasing Products or Services from Supplier. Each invoice shall include: purchase order numbers, Product numbers, descriptions of Products or Services (including the locations specified for the work), quantities (including hours worked, if hourly fees apply), unit price and complete billing address for the Products or Services so delivered. An EDI invoice (if applicable) must comply with THERAPAK’s technical specifications. Unless otherwise specified on the purchase order, THERAPAK’s billing address is as follows: 651 Wharton Dr., Claremont, CA 91711. Unless otherwise agreed upon by the parties in writing, THERAPAK shall pay all undisputed invoiced amounts within seventy five (75) days of the receipt of the Products by THERAPAK’s warehouse receiving system or completion of the Services, provided that THERAPAK shall be given a two percent (2%) discount on any invoiced amounts paid within thirty (30) days of receipt.

  9. Shipment and Title. All Products shipped by Supplier from Supplier’s location(s) in the United States to THERAPAK’s location(s) in the United States, shall be shipped FOB Supplier’s origin, freight collect, via THERAPAK’s specified carriers (THERAPAK shall enter into and bear the costs relating to the contract of carriage) in accordance with THERAPAK’s most recently published Routing Guide and International Delivery Requirements and Conditions (to obtain a current copy, please call 1-800-877-9614). All Products shipped by Supplier from Supplier’s location(s) outside of the United States to THERAPAK’s location(s) in the United States, shall be shipped DDP (Incoterms 2010) via THERAPAK’s specified carriers (THERAPAK shall enter into and bear the costs relating to the contract of carriage) in accordance with THERAPAK’s most recently published Routing Guide and International Delivery Requirements and Conditions. All Products shipped by Supplier directly to THERAPAK’s customers at THERAPAK’s request and where THERAPAK pays freight, shall be shipped in accordance with THERAPAK’s most recently published Routing Guide and International Delivery Requirements and Conditions. For all shipments, any applicable UPS (or any successor or alternative shipper utilized by THERAPAK) accessorial charges shall be borne by the Supplier, per such carrier’s published tariffs. Title and risk of loss of all Products will pass to THERAPAK upon Supplier’s delivery of such Products either directly to THERAPAK or THERAPAK’s customers. Proof of delivery will be required upon THERAPAK’s request. Any deviation from the delivery terms of this Section 8 must be agreed upon in writing by authorized representatives of both Supplier’s and THERAPAK’s Transportation Departments, prior to shipment. Failure by Supplier to comply with THERAPAK’s most recently published Routing Guide and Global Logistics Delivery Requirements may result in freight, handling and administrative charge-backs to Supplier.

  10. Packaging of Products. Supplier shall pack, package, mark and otherwise prepare all Products for shipment in accordance with the standards of the International Safe Transit Association and good commercial practice, acceptable to common carriers for shipment, and adequate to insure their safe arrival at the ultimate destination. Supplier shall mark all containers with necessary lifting, handling and shipping information, purchase order number, date of shipment and the names of Supplier and THERAPAK.

  11. Inspection and Acceptance. THERAPAK or its customers shall have a reasonable opportunity to inspect the Products after receipt at the destination. Any inspection by THERAPAK or THERAPAK’s customers does not relieve Supplier of any obligations or liabilities under this Agreement. If any Products do not meet all of the requirements of this Agreement, THERAPAK shall have the right to reject such Products at Supplier’s expense. Payment for any Products shall not be deemed an acceptance thereof. As for Services, THERAPAK or its customers have the right to inspect all work and Services performed at all reasonable times and in a manner that will not unduly delay the performance of the Services. Acceptance of any deliverable or task part will occur when the deliverable or task meets the agreed upon tests or acceptance criteria set forth in the statement of work or purchase order, or if not set forth therein, as reasonably determined by THERAPAK or its customer.

  12. Regulatory. For each Product sold to THERAPAK, Supplier shall provide to THERAPAK: (i) a current and accurate Country of Origin, Harmonized Tariff Schedule US and Export Control Classification Number; (ii) material safety data sheets and any other documentation reasonably necessary to enable THERAPAK to comply with all then prevailing applicable federal, state, municipal, local, and other laws and regulations (“Laws”) relating to the Products; (iii) a current and accurate Certificate of Origin pursuant to the specific country of origin criteria and value content requirements as set forth by U.S. Customs and Border Protection regulations and notify THERAPAK in writing whether Supplier participates in a free trade agreement. Supplier must notify THERAPAK of any change to the country of origin in writing, immediately upon knowledge of such change. Additionally, for each Product sold to the THERAPAK and upon request by THERAPAK, Supplier shall provide applicable product certification information including certificates of analysis, certificates of conformity, certificates of quality, certificates of sterility and certificates regarding animal origin or allergens. Such documentation shall be labeled with lot or batch number and shall be forwarded to THERAPAK in electronic format. All such documentation must be provided at time of shipment for each lot or batch number and as applicable to the Product, shall also be supplied with the packaging of such Product.

  13. Ownership of Proprietary Rights. (i) Ownership. Supplier recognizes that THERAPAK is the owner of certain brand names, trademarks, trade names, logos and other intellectual property connoting THERAPAK which are proprietary to THERAPAK and which THERAPAK may elect to use in the promotion, marketing, sale and distribution of the Products, and that Supplier has no right or interest in or to any of such intellectual property. Except as otherwise contemplated by this Agreement, neither Supplier nor THERAPAK, shall, without the prior written consent of the other party, use any of such other party’s brand names, trademarks, trade names or logos, or adopt, use or register any words, phrases or symbols so nearly resembling any of such other party’s brand names, trademarks, trade names or logos as to be likely to lead to confusion or uncertainty, or to impair or infringe the same in any manner, or otherwise imply any endorsement by one party of the other party or its products or services. (ii) License. Supplier hereby grants to THERAPAK a royalty-free, worldwide, irrevocable and paid-up right and license to use Supplier’s manuals, logos, copyrighted information, brand names, trademarks and trade names on, and in the promotion, marketing, sale and distribution of, the Products or Services, it being expressly understood that THERAPAK shall discontinue, in a commercially reasonable time, the use thereof upon depletion of THERAPAK’s inventory of the Products. Supplier shall use reasonable efforts to register such brand names, trademarks, trade names and logos where reasonably necessary or useful to the successful distribution of the Products or use of the Services; (iii) Services. As between Supplier and THERAPAK, all right title and interest, including copyright interests and any other intellectual property rights in and to the Services, work product of the Services, materials and processes produced or provided by Supplier hereunder shall be the property of THERAPAK or its customer. Supplier agrees to give THERAPAK or any person designated by THERAPAK all assistance reasonably required to perfect the rights hereinabove defined, including the procurement, at THERAPAK request, of written assignments and title commitments in a form acceptable to THERAPAK from all employees and agents assigned hereunder. All of THERAPAK rights under this section (iii) are assignable by THERAPAK to its customer.

  14. Warranty. Supplier hereby represents and warrants that all Products comprising each shipment or other delivery hereinafter made by Supplier to or on the order of THERAPAK or any of its customers, shall: (i) as of the date of such shipment to THERAPAK’s customer and for the periods of time specified by Supplier or (a) twelve (12) months in the case of Supplier branded Products or (b) two (2) years in the case of private label Products, whichever is longer, be free from defects in design, operation, workmanship and materials, conform in all respects with all samples furnished and all labeling and product insert sheets and other product specifications and claims made by Supplier for them; (ii) be produced consistently with good manufacturing practices and good quality control practices; (iii) be merchantable and fit for their intended purposes; (iv) be transferred with good and marketable title, free and clear of any liens or encumbrances; (v) have at least 12 months of shelf-life remaining following the date of delivery to THERAPAK’s customer; (vi) not infringe upon any patent, trade name, trade dress, trademark, service mark, copyright, or other proprietary rights of third parties; (vii) have been manufactured, packaged, and labeled and priced and shall be sold in compliance with all applicable Laws, including without limitation, and as applicable, the W.H.M.I.S., Workplace Safety and Insurance Act, 1997 (Ontario) and the Transportation of Dangerous Goods Act, 1992 (Canada), as amended from time to time; (viii) not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act (the “Act”), or the Food and Drugs Act (Canada) (the “Canadian Act”), as applicable, or any applicable Law, and are not articles which may not, under the provisions of section 404, 505, or 512 of the Act, be introduced into interstate commerce; (ix) to the extent such Products are subject to the Hazardous Products Act (Canada), as amended from time to time, and regulations thereunder, have reasonably and representatively been tested as prescribed by the Consumer Product Safety Bureau (CPSB) within Health Canada to ensure conformity, at the time of shipment, to the flammability standards in effect under the Hazardous Products Act, as amended from time to time, any applicable codes of the National Fire Code of Canada, and any other Laws relating to flammable substances; (x) and comply with all applicable import and export Laws. For Services, Supplier warrants that: (i) the Services will be free from faults and defects, will be of the kind and quality designated, conform to the statement of work, as applicable, will be performed by qualified personnel and will meet all acceptance criteria; (ii) the Services will be rendered with the standard of care, skill and diligence normally provided by a professional person in the performance of similar services; (iii) the Services will be performed in a workmanlike and professional manner in conformity with generally accepted industry practices; (iv) Supplier has the necessary permits, licenses, registrations and other similar documents necessary to perform the Services and will comply with the Immigration Reform Act of 1986, as amended and will only provide THERAPAK with personnel whose employment eligibility has been verified; (v) the Services do not and shall not violate any applicable law, rule or regulation; any contract with third parties; or any third-party rights in any patent, trademark, copyright, trade secret, or similar right; and (vi) Supplier abides by all applicable laws relating to equal employment opportunity. Further, time is of the essence in the performance of the Services, and Supplier shall complete the Services by the milestones and dates set forth in the purchase order or statement of work, as applicable. Supplier authorizes THERAPAK to pass through all warranties to THERAPAK’s customers. Supplier further warrants that it shall comply (or cause compliance) with all applicable Laws and that it is authorized to enter into this Agreement and that in so doing it is not in violation of any Laws or any terms or conditions of any contract or other agreement to which it may be a party.

  15. Breach of Warranty. Supplier shall promptly replace, at no cost to THERAPAK, any Product that is, or that a customer returns to THERAPAK as, defective or non-conforming, with a non-defective or conforming Product (as applicable) or, at THERAPAK’s option, credit THERAPAK’s account for all amounts paid with respect to such Product. Supplier shall pay all taxes, transportation and other costs and expenses incurred by THERAPAK in the replacement of any defective or non-conforming Product. Should any nonconformity be detected after a Service is completed, Supplier will supply the necessary Service, direction or consultation to correct the nonconformity within 10 days thereafter at no charge to THERAPAK or its customer. If the nonconformance is not corrected, then, THERAPAK may terminate such statement of work, or any part thereof, without liability and Supplier shall refund to THERAPAK all fees paid by THERAPAK relating to the non-conforming deliverable or task. In addition, THERAPAK may cover by seeking alternative sources to perform the non-conforming Services. Should THERAPAK exercise its option to cover, Supplier shall be liable to THERAPAK for THERAPAK’s increased costs, including the increases in prices charged by such alternative sources for performing the non-conforming Services. Further, Supplier shall be responsible for any fines, late fees or penalties incurred by THEREPAK for failure to correct any non-conforming Services pursuant to this subsection.

  16. Recalls. Supplier shall immediately notify THERAPAK in writing (a “Notification Letter”) upon becoming aware of holds or recalls with respect to any Products or Services, or any defect or condition (actual or alleged) which in any way may alter the specifications or quality of any Products, render any Products or Services in violation of any Laws including, without limitation, the Act or as applicable, the Canadian Act, cause revocation of any regulatory approval with respect to any Products or their sale, give rise to a claim against THERAPAK by any third party, or otherwise negatively affect the salability of any Products. A Notification Letter shall include catalog and lot/serial numbers(s) of such Product(s), and in the event of a corrective action or recall, shall contain a description of the issue(s) and the corrective action(s). In the event of a corrective action or recall of Product from end user customers, Supplier shall also provide THERAPAK with Supplier’s letter to customers (the “Customer Letter”) for THERAPAK’s review and approval. Upon approval of the Customer Letter, THERAPAK shall provide Supplier with the customer contact information for THERAPAK’s customers that purchased the Product(s) or Services subject to such corrective action or recall (“Customers”) and Supplier shall send the Customer Letter to all such Customers. Supplier shall promptly reimburse THERAPAK for the full price paid for any Products returned to THERAPAK or Services rejected by a customer, or to Supplier by THERAPAK, and any costs due to a corrective action or recall, including, but not limited to, the replacement, repair, modification, adjustment, relabeling, destruction, or disposal of any such Product or re-performance of Services. All Products subject to corrective action or recall shall be sent directly from THERAPAK’s customers to Supplier.

  17. Insurance. Supplier agrees to procure and maintain on an occurrence form basis product and/or general liability insurance with respect to the Products and contractual liability coverage relating to this agreement, with insurer(s) having Best’s rating(s) of A- or better, naming THERAPAK as an additional insured (Broad Form Vendors Endorsement), with minimum limits in each case of $2,000,000. At the sole discretion of THERAPAK, Supplier will also procure and maintain professional liability, errors and omissions insurance or similar coverage, with insurer(s) having Best’s rating(s) of A- or better, naming THERAPAK as an additional insured (Broad Form Vendors Endorsement), in an amount not less than $1,000,000 per occurrence and $2,000,000 aggregate. Supplier shall promptly furnish to THERAPAK a certificate of insurance and renewal certificates of insurance evidencing the foregoing coverages and limits. Supplier’s insurance shall be primary and non-contributing and shall not be canceled, reduced or otherwise changed without providing THERAPAK with at least thirty (30) days prior written notice. Supplier shall arrange a waiver of subrogation by the applicable insurance company under each policy.

  18. Indemnification. Supplier agrees to and shall protect, defend, indemnify and hold harmless THERAPAK each of its subsidiaries, affiliates, divisions and subdistributors, and its and their respective agents, directors, officers, employees and representatives, and its and their respective successors and assigns (each a “THERAPAK Indemnified Party”) from any and all claims, actions, costs, expenses and damages, including attorney’s fees and expenses (“Damages”) arising out of any actual or alleged: (i) patent, trademark or copyright infringement in the design, composition, use by itself or in accordance with Supplier’s instructions, sale, advertising or packaging of the Products or Supplier’s performance of the Services; (ii) any breach by Supplier of any term or provision herein; (iii) use or operation of the Products or performance of the Services, including, without limitation, any Damages involving personal injury, death or property damage based on any theory, including strict liability theories, or warranty claim, defect or nonconformity as to any Product or Services, and (iv) wrongful or negligent act or omission by Supplier or its officers, directors, stockholders, agents, servants, employees, representatives or subcontractors relating to the purchase and sale of Products or performance of Services pursuant to this Agreement except to the extent that such liability is caused by the negligent acts or omissions or willful misconduct of a THERAPAK Indemnified Party.

  19. Confidentiality. During the performance of this Agreement, each party may have or may be provided access to the other party’s confidential information and materials (including, without limitation, technical information, marketing, sales, the terms and conditions of this Agreement and new product development information). All such information which, if in written or other tangible form, is clearly designated as “confidential” or, if disclosed orally, is designated as “confidential” in a written memorandum delivered by the party disclosing the confidential information (the “Disclosing Party”) to the party receiving the confidential information (the “Receiving Party”) promptly following such oral disclosure or is by its nature of the type that is understood to be confidential, shall be retained in confidence in accordance with the terms of this Agreement and any applicable separate nondisclosure agreement between Supplier and THERAPAK. Further, the Receiving Party shall not (except as expressly authorized herein during the term of this Agreement), either during the term of this Agreement or for three years after its termination or expiration, use, publish or disclose or cause or permit anyone else to use, publish or disclose any such information unless (i) such information was known to the Receiving Party at the time of receipt thereof from the Disclosing Party as evidenced by written documentation, (ii) such information becomes publicly available through no fault of the Receiving Party, or (iii) such information was lawfully obtained by the Receiving Party from any third party without violation of this Agreement. Nothing in this Section shall prevent a Receiving Party from disclosing confidential information of the Disclosing Party pursuant to a request of any court, government or governmental agency or as required by applicable Law; provided, however, that the Receiving Party shall give the Disclosing Party prompt notice of the required disclosure, and shall provide the Disclosing Party with reasonable assistance to the extent the Disclosing Party seeks a protective order or other means to preserve the confidentiality of the information required to be disclosed. All originals, copies, summaries and derivations of Confidential Information in whatever form shall be returned to the Disclosing Party upon the Disclosing Party’s request.

  20. Export. THERAPAK acknowledges that Products purchased from Supplier, upon resale, may be subject to US Export Administration Regulations as well as similar laws and regulations of the country of export. Subject to compliance with local, national law of the country of export, THERAPAK will not resell those products contrary to U.S. law and regulations.

  21. Anti-Corruption. Supplier represents and warrants that: (i) it is familiar with and understands the terms of the U.S. Foreign Corrupt Practices Act of 1977, as amended (“U.S. FCPA”), and that Supplier will comply with the U.S. FCPA and all other applicable anti-bribery or anti-corruption laws or regulations of any other country or jurisdiction which are applicable to the parties’ business activities hereunder; (ii) no principal, partner, officer, director or employee of Supplier is or will become an official of any governmental body of any country or jurisdiction (other than the U.S.) that is applicable to the parties’ business activities hereunder; and (iii) Supplier has not and shall not offer, pay, give, or promise to pay or give, directly or indirectly (including through a third party or intermediary) any payment or gift of any money or thing of value to any government official, government employee (or employee of any company owned in part by a government), political party, political party official, or candidate for any government or political office (each, a “Government Official”) to influence any acts or decisions of such Government Official or to induce such official to use his or her influence with the local government to effect or influence the decision of such government in order to assist either THERAPAK or Supplier in its performance of their obligations under this Agreement or to benefit the other party. Failure by Supplier to comply with this section shall be deemed a material breach of a material provision of this Agreement and THERAPAK will have the right to immediately terminate this Agreement and its performance without any liability to Supplier.

  22. Government Contracts. If the Products or Services to be furnished by Supplier are to be used in the performance of a U.S. government contract or subcontract, this Agreement incorporates certain Federal Acquisition Regulation clauses set forth herein in full text and by reference (as such clauses may be amended from time to time and as such additional clauses may be added to THERAPAK’s prime contract from time to time). These regulations shall be interpreted in a manner to give effect to the contractual relationship between Supplier and THERAPAK and the right of the U.S. Government under THERAPAK’s prime contract. In furtherance of the foregoing, Supplier hereby represents and warrants that it does not (i) receive 80% or more of its annual gross revenues from federal contracts and subcontracts, loans, grants and subgrants and cooperative arrangements or (ii) if the foregoing subsection (i) is not true, such amount does not exceed $25,000,000. THERAPAK may require Supplier to execute a certification confirming its compliance with certain provisions of the Federal Acquisition Regulation clauses, including those clauses relating to debarred and/or suspended subcontractors. Furthermore, if the Order is greater than $10,000, Code of Virginia Section 2.2-4312 pertaining to Drug Free Workplaces shall be incorporated herein and shall apply to Supplier.

  23. Non-Solicit – Service provider acknowledges and agrees that in the course of performing its obligations under this Agreement, service provider will be introduced to and will work for customers of VWR. Service provider acknowledges and agrees that such customers are valuable resources, in whom VWR has invested considerable time, effort and resources. Therefore, service provider agrees that for the duration of this Agreement and for three (3) years thereafter, service provider shall not directly or indirectly solicit, interfere with or entice away any customer; provided however, that this section is not intended to restrict such customer from contacting service provider without its solicitation or its encouragement, provided that service provider notifies VWR of any such customer contacting service provider and refers to service provider any inquiries for services from any such customer. Notwithstanding the proceeding to the contrary, service provider may perform services directly for such customer, person or entity, if VWR agrees in writing.

  24. Termination. THERAPAK may terminate this Agreement, in whole or part, without cause, upon written notice to Supplier. Upon any such termination Supplier shall, to the extent specified by THERAPAK, stop all work associated with that specific Agreement, and cause its suppliers and subcontractors (if applicable) to stop work. THERAPAK may also terminate an Agreement, in whole or in part, if Supplier: (i) fails to make delivery of the Products or Services within the time specified herein; (ii) fails to replace or correct defective Products or Services in accordance with the provisions of this Agreement or perform in accordance with its obligations hereunder; (iii) becomes insolvent, files or has filed against it a petition in bankruptcy, or makes an assignment of the benefit of creditors; or (iv) is affected by a force majeure event which continues for more than (six) 6 consecutive months.

  25. Survival. Any sections of this Agreement that by their nature are intended to survive any termination or expiration of this Agreement (including, without limitation, sections pertaining to warranty, indemnification and confidentiality), shall survive any termination or expiration of this Agreement.

  26. Force Majeure. If either party is prevented from performing its obligations under this Agreement solely by circumstances beyond the reasonable control and without the fault or negligence of the party obligated to perform (including, without limitation, strikes or other labor difficulties (except those involving either party), war, shortages of power or raw material, Laws or acts of God), upon the prompt giving of notice to the other party detailing such force majeure event and its anticipated duration, the obligations of the party so prevented shall be excused during such period of delay, and such party shall take whatever reasonable steps are necessary to relieve the effect of such cause as rapidly as possible. The party invoking a force majeure event shall notify the other party promptly upon the termination of such event. During the period that the performance by one of the parties of its obligations under this Agreement has been suspended by reason of a force majeure event, the other party may likewise suspend the performance of all or part of its obligations hereunder to the extent that such suspension is commercially reasonable.

  27. Waiver. No waiver of the terms of this Agreement shall be binding on either party unless reduced to writing and signed by an authorized officer of the party to be bound and shall be effective only in the specific instance, and for the specific purpose for which given, and shall not be construed as a waiver of any rights in the future or subsequent breach. The failure of either party to enforce at any time or for any period of time any of the provisions of this Agreement shall not be construed as a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision.

  28. Construction and Interpretation. The captions in this Agreement have been inserted for convenience or reference only and do not constitute a part of, and shall not be considered in construing, this Agreement. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid for any reason, the remainder of this Agreement shall not be deemed invalid but shall remain in full force and effect. No course of dealing, usage of trade or course of performance shall supplement, explain or amend any term, condition or instruction of this Agreement, or any shipment of Products hereunder.

  29. Applicable Law and Venue. This Agreement is made pursuant to, and shall be construed and enforced exclusively in accordance with, the internal laws of the State of California (and United States federal law, to the extent applicable), without giving effect to otherwise applicable principles of conflicts of law. The United Nations Convention on Contracts for the International Sales of Goods expressly shall not apply. Any lawsuit arising from or related to this Agreement shall be brought exclusively before the United States District Court, Central District Court of California or any State court sitting in Los Angeles, California and each party hereby consents to the jurisdiction of any such court.

  30. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and designees. Neither party may transfer, assign or delegate its rights or obligations under this Agreement or any portion thereof without the prior written consent of the other party, except for any transfer, assignment or delegation, in whole or in part, to its respective parent, subsidiaries or other affiliates, or to a successor entity. Without limiting the foregoing, Supplier shall not, without the prior written approval of THERAPAK, appoint subcontractors or agents to perform any Services hereunder. Supplier shall remain fully liable for the performance of any permitted subcontractor.

  31. Nature of Relationship. Neither party, its agents or employees shall, under any circumstances, be considered to be an agent, partner, joint venturer or representative of the other party, or anything other than an independent contractor for all purposes of this Agreement, and except as may be authorized specifically in writing, neither party has express or implied authority to bind the other in any manner whatsoever by virtue of this Agreement.

  32. Notices. All notices required by this Agreement shall be in writing, and if sent to THERAPAK, shall be delivered to:

    THERAPAK, LLC

    651 Wharton Dr

    Claremont, CA 91711

    Attn. President

  33. Conflict Minerals. Supplier acknowledges that THERAPAK and/or its customers are/or may be required to comply with the disclosure and reporting obligations of the Securities and Exchange Commission related to the use of “Conflict Minerals” (tin, tantalum, tungsten and gold) as prescribed by the Unites States Dodd Frank Wall Street Reform and Consumer Protection Act. In furtherance of the foregoing, Supplier hereby represents, warrants, covenants and certifies that no Product contains or will contain any Conflict Minerals and that it shall exercise due diligence on the source and chain of custody of its suppliers to avoid the use of Conflict Minerals in the Products. Supplier further agrees that it (i) shall provide any requested certifications to THERAPAK and/or its customers regarding its compliance with the foregoing; (ii) shall require its suppliers of every tier to provide the foregoing certifications regarding the materials it supplies; (iii) and shall provide any other reasonable assistance in relation to the foregoing requirements. Supplier shall indemnify, defend and hold harmless any THERAPAK Indemnified Party from and against any and all Damages arising from, or relating to, Supplier’s failure to comply with the foregoing terms.

  34. Affirmative Action Notice: vendors and subcontractors are notified that they may be subject to the provisions of: 41 CFR Section 60-300.5(a); 41 CFR Section 60-741.5(a); 41 CFR Section 60-1.4(a) and (c); 41 CFR Section 60-1.7(a); 48 CFR Section 52.222-54(e); and 29 CFR Part 471, Appendix A to Subpart A with respect to affirmative action program and posting requirements.

  35. This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.

  36. Federal Acquisition Regulations.

    CLAUSE TITLE
    FAR 52.203-6 RESTRICTIONS ON SUBCONTRACTOR SALES TO THE GOVERNMENT, (SEP 2006) (ALTERNATE IOCT 1995)
    FAR 52.203-13 CONTRACTOR CODE OF BUSINES ETHICS AND CONDUCT (APR 2010)
    FAR 52.203-15 WHISTLEBLOWER PROTECTIONS UNDER THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (JUN 2010) (REF. SECTION 1553 OF PUB. L. 111-5)
    FAR 52.219-8 UTILIZATION OF SMALL BUSINESS CONCERNS (DEC 2010) (15 U.S.C. 637(D)(2) AND (3))
    FAR 52.222-19 CHILD LABORCOOPERATION WITH AUTHORITIES AND REMEDIES (MAR 2012)
    FAR 52.222-25 AFFIRMATIVE ACTION COMPLIANCE
    FAR 52.222-26 EQUAL OPPORTUNITY (MAR 2007) (E.O. 11246)
    FAR 52.222-35 EQUAL OPPORUNITY FOR VETERANS (SEPT 2010) (38 U.S.C. 4212)
    FAR 52.222-36 AFFIRMATIVE ACTION FOR WORKERS WITH DISABILITIES (OCT 2010) (29 U.S.C. 793)
    FAR 52.222-40 NOTIFICATION OF EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT (DEC 2010) (E.O. 13496)
    FAR 52.222-50 COMBATING TRAFFICKING IN PERSONS (FEB 2009) (22 U.S.C. 7104(G))
    FAR 52.222-54 EMPLOYMENT ELIGIBILITY VERIFICATION (JAN 2009)
    FAR 52.222-37 EMPLOYMENT RECORDS ON VETERANS (SEP 2010)
    FAR 52.223-3 HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA (JAN 1997)
    FAR 52.223-7 NOTICE OF RADIOACTIVE MATERIALS (JAN 1997)
    FAR 52.223-18 ENCOURAGING POLICIES TO BAN TEXT MESSAGING WHILE DRIVING (AUG 2011)
    FAR 52.225-5 TRADE AGREEMENTS (MAR 2012)
    FAR 52.225-13 RESTRICTION ON FOREIGN PURCHASES (JUN 2008)
    FAR 52.247-64 PREFERENCE FOR PRIVATELY OWNED U.S.-FLAG COMMERCIAL VESSELS (FEB 2006) (46 U.S.C. APPRX. 1241(B) AND 10 U.S.C. 2631)
    FAR 52.239-1 PRIVACY OR SECURITY SAFEGUARD (AUG 1996)