TERMS OF SALE

GENERAL TERMS AND CONDITIONS

COMPLETE AGREEMENT

These Terms and Conditions of Sale (“Terms”) apply to the sale by NexGen Therapeutics, LLC (“NexGen”) to the buyer (“Buyer”) of medical and surgical products (“Product” or “Products”), unless otherwise agreed in a separate written agreement. NexGen expressly conditions its sale of the Products on Buyer’s agreement to these Terms, notwithstanding any different or additional terms contained in any purchase order, or other terms proposed by Buyer, which terms are expressly rejected by NexGen, consistent with Article 2 of the Uniform Commercial Code (“UCC”). Buyer accepts and agrees to these Terms upon ordering the Products. NexGen and Buyer may each be referred to herein as a “Party” or collectively as the “Parties.”

PAYMENT TERMS AND PRICE

All invoices submitted by NexGen to Buyer are payable in full within 30 days after the date of such invoice. If payment is not received by NexGen from Buyer within this 30-day period, interest shall accrue on any unpaid balance from the date of the invoice at the rate of 1.5% per month (18% per annum), but in no event at a rate greater than the maximum rate permitted by applicable law. Buyer is responsible for all collection costs, including reasonable attorney fees.

When pricing is offered based upon a quantity of items and Buyer does not purchase all such items as listed, NexGen reserves the right to adjust the prices of the items actually purchased by Buyer and Buyer shall pay such adjusted prices upon demand.

Buyer shall pay any sales, use, excise, or similar tax applicable to the purchase of the product.

Prices and quotations are subject to change.

Buyer shall be fully responsible for and will be billed by NexGen for all freight, insurance, and other transportation costs.

Buyer will comply with all applicable federal and state laws, regulations, and other authorities, specifically including but not limited to the federal health care program anti-kickback law, 42 U.S.C. § 1320a-7b(b). Buyer acknowledges and will comply with its legal obligations to fully and accurately report any discounts and/or rebates it receives in accordance with applicable federal and state laws, regulations, and other authorities.

PURCHASE ORDERS, DELIVERY, TITLE, RISK OF LOSS, INSPECTION, AND RETURNS

No purchase order submitted by Buyer for any product shall be binding on NexGen unless specifically accepted by NexGen in writing or by fulfillment thereof. Any purchase order or acknowledgment of Buyer, whether oral, printed, stamped, typed or written shall be strictly subject to and governed by these terms and conditions and none of the provisions of such purchase orders or acknowledgments shall be applicable to the extent they conflict with NexGen’s terms and conditions of sale.

NexGen shall have the right, in the exercise of its sole and absolute discretion, to cancel any purchase order accepted by NexGen or to delay shipment if Buyer fails to meet any payment schedule or supply reasonable credit or financial information requested by NexGen.

NexGen will have the right to cancel any purchase order, in whole or in part, without incurring any liability to Buyer and NexGen shall not be liable for failure to fulfill any purchase order or to perform any contract in the event of acts beyond its control, including, without limitation, reasons of force majeure.

Orders are FOB shipping point. Standard shipping method will be ground delivery. Express or Overnight shipping is available at Buyer’s request.

Delivery dates are estimates only. Buyer shall not be relieved of its obligation to purchase all of the products stated in its purchase order because of NexGen’s failure to meet any desired or requested delivery date. Title and risk of loss of any product ordered by Buyer shall pass to Buyer upon pickup and acceptance by the carrier.

Buyer will inspect each shipment of product and notify NexGen within 10 days of receipt of product of any cause for rejecting the product or the product will be deemed accepted by Buyer.

NexGen will not accept any return of any product for credit, replacement, or refund without prior written authorization from NexGen. Shipping and handling are not refundable.

EXPORT OF NexGen PRODUCTS

The export from the United States of certain NexGen products and technology to certain countries is specifically prohibited by the Export Administration Act of 1979, as amended. The export of all NexGen products and technology must be in accordance with all applicable laws, rules and regulations including without limitation the applicable provisions of the United States Export Administration Regulations and the Export Regulations of the United States Department of Defense.

DISCOUNT DISCLOSURE

The dollar value of any discounts and rebates provided by NexGen to Buyer are intended to be reductions in price in accordance with 42 U.S.C. Section 1320a-7b(b)(3)(A) and 42 C.F.R. Section 1001.952(h). Buyer has an obligation to accurately record and may have an obligation to report all such reductions in purchase price to the Department of Health and Human Services (“HHS”) or other federal agency, state agencies, or other payers, as applicable. Buyer may also be required to submit other information required by 42 C.F.R. Section 1001.952(h) to HHS or other federal agencies, state agencies, or other payers, as applicable, upon request.

FDA REPORTING

If Buyer files with the U.S. Food and Drug Administration (“FDA”) an FDA Form 3500A or a similar form or medical device report under the Federal Safe Medical Devices Act, or any similar statute or regulation, with respect to a Product or any part of a Product, then Buyer will simultaneously provide a copy of the form or report to NexGen Therapeutics LLC, info@ngtus.com

FORCE MAJEURE AND SHORTAGES

The Parties will not be liable for loss or damage of any kind resulting from any delay in delivery or failure to otherwise carry out their obligations under these Terms due to unforeseen states of “impracticability,” as defined in UCC Section 2-615. Notwithstanding, no such event will relieve Buyer of its obligations to make payments for other deliveries under these Terms. NexGen reserves the right, in its sole judgment and without liability to Buyer, to allocate its available production capacity and Product inventories as may be necessary or equitable in the event of any shortages of production capacity or Products at any time.

WAIVER

NexGen’ waiver of a right or obligation under these Terms on one occasion will not constitute a waiver of any future exercise of that right.

THIRD PARTY BENEFICIARIES

Nothing in these Terms is intended to benefit any person or entity other than Buyer and NexGen.

ASSIGNMENT

Buyer’s rights and obligations set forth in these Terms may not be assigned without NexGen’ prior written consent.

SOFTWARE OWNERSHIP

Buyer acknowledges and agrees that NexGen or, in applicable instances, NexGen’s licensors, or manufacturers of NexGen’s Products, retain the entire right, title, and interest in and to the intellectual property (including without limitation all copyrights) related to any item of software and related documentation which NexGen provides to Buyer, Buyer shall not itself, or grant others a right to (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of any such software (b) remove, obscure, or alter any copyright, trade secret, trademark, patent, or other proprietary rights notice affixed to or displayed on any such software or related documentation, or affixed to or printed on any of its factory packaging.

LIMITED WARRANTY AND DISCLAIMERS

NEXGEN WARRANTS TO BUYER THAT, FOR THE EARLIER OF ONE YEAR FROM THE DATE OF PURCHASE OR UNTIL THE PRODUCT IS USED BY BUYER, THE PRODUCTS WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP WHEN STORED AND USED IN ACCORDANCE WITH THE INSTRUCTIONS FOR STORAGE AND USE PROVIDED BY NEXGEN AND IN ACCORDANCE WITH APPLICABLE REGULATORY REQUIREMENTS. DESCRIPTIONS OR SPECIFICATIONS APPEARING IN NEXGEN’S LITERATURE ARE MEANT TO GENERALLY DESCRIBE THE PRODUCTS AND DO NOT CONSTITUTE ANY EXPRESS WARRANTIES. IN THE EVENT THAT NEXGEN GIVES TECHNICAL ADVICE WITH RESPECT TO THE PRODUCT, IT IS AGREED THAT SUCH ADVICE IS GIVEN WITHOUT ANY LIABILITY ON NEXGEN’S PART. ANY GUARANTEE OF SPECIFIC PROPERTIES OF THE PRODUCTS SHALL ONLY BE EFFECTIVE IF AND TO THE EXTENT SPECIFICALLY CONFIRMED BY NEXGEN IN WRITING. THIS WARRANTY SHALL NOT APPLY FOR PRODUCT FAILURE OR DEFICIENCY DUE TO IMPROPER STORAGE, ALTERATION, OR THE CONSEQUENCES OF USES FOR WHICH THE PRODUCTS WERE NOT DESIGNED.

THE WARRANTIES, OBLIGATIONS, AND LIABILITIES OF NEXGEN AS SET FORTH HEREIN ARE EXCLUSIVE. NEXGEN DISCLAIMS AND BUYER WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE PRODUCTS AND ANY OTHER GOODS OR SERVICES DELIVERED BY NEXGEN INCLUDING BUT NOT LIMITED TO ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.

NEXGEN’S LIABILITY UNDER THIS WARRANTY IS LIMITED TO: (1) THE REPLACEMENT OF THE PRODUCTS OR THE RE-SUPPLY OF EQUIVALENT PRODUCTS; OR (2) THE REPAIR OF THE PRODUCTS OR PAYMENT OF THE COST OF REPAIRING THE PRODUCTS. NexGen SHALL HAVE NO OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE, OR IMPUTED NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY) OR OTHERWISE, FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES.

COMPLIANCE WITH LAWS AND MANUALS

Buyer will comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to its business and activities. Buyer will follow and comply with all NexGen instructions and manuals applicable to the Products.

CHOICE OF LAW AND JURISDICTION

All claims and disputes relating to or arising from these Terms and Conditions or the sale of NexGen products (whether in contract, tort or otherwise and including statutory and consumer protection claims) will be governed by North Carolina law without regard to conflicts of law. Buyer consents to the jurisdiction of the courts of North Carolina.