1. QUOTATIONS:

Subject to the provisions hereof, all quotations for supply of goods from KOOLTRAK, Inc. (hereinafter called "Seller") to Buyer are valid only if signed by an authorized officer of Seller and are firm for thirty days from the date of the quotation unless otherwise indicated on the face of the quotation. Alterations or changes of quotations after thirty days may be made at the discretion of Seller without notice.

2. ORDERS:

All orders received from Buyer must be accepted and confirmed in writing by an authorized officer of Seller before they bind Seller. Buyer’s purchase order must accept Seller’s terms and conditions of sale as the sole terms and conditions of the agreement between Buyer and Seller. By placing an order pursuant to this quotation or order confirmation or by acceptance of delivery of any of the items described in this quotation, order confirmation or invoice, Buyer shall be deemed to have accepted the terms and conditions contained herein and to have waived any terms and conditions that might be contained in Buyers order form, unless the terms and conditions herein are modified in writing by an authorized officer of Seller.

3. PRICES:

(a) Prices quoted and confirmed do not contain federal, state or local taxes, duties, or other levies as applicable, which taxes, duties, or levies will be added to the sale price when Seller is legally obligated to collect them unless Buyer provides Seller with the proper exemption certificate. All prices quoted and confirmed are subject to correction for typographic and clerical errors.

(b) If Buyer falls to take delivery hereunder of the quantity of items upon which a quantity discount price, if any, is based, Buyer will be back-billed an amount based upon the quantity actually delivered hereunder and upon the quantity pricing schedule in effect at the time the order was placed, plus any cancellation charges that may be applied.

(c) Prices apply only if the quantity ordered hereunder is released for delivery by Buyer and accepted by Buyer within 12 months from the date Seller received Buyer’s order. Otherwise, Sellers listed prices in effect on the date of receipt by Buyer of the quantity actually shipped will apply, and Buyer will pay the difference, if any.

4. PAYMENT:

Terms of payment for items delivered hereunder (hereinafter called "items") are net thirty days from date of invoice if Seller has agree to extend credit to Buyer. Seller may at any time either withhold, grant or suspend credit at its discretion. If credit has not been established or has been withheld or suspended the terms will be cash with order, C.O.D., or otherwise at the election of Seller. Each shipment will be considered a separate and independent transaction and payment will be made accordingly. Seller is not obliged to ship items to be delivered hereunder unless and until adequate means of payment, as determined by the Seller, has been established. Payment must be made without regard to whether Buyer has or will inspect the items.

5. TITLE AND DELIVERY:

(a) Items shall be delivered F.O.B. point of shipment and title thereto shall pass to Buyer upon Seller’s delivery of the items to a common carrier for shipment to Buyer. In the event the quotation calls for delivery by installments, this contract shall be construed as severable as to each installment. Each such installment shall be deemed to be sold under a separate and independent contract, and default in any shipment or delivery shall not invalidate this contract in respect to any other shipments or deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept remaining deliveries.

(b) Shipping dates represent Seller’s best estimate and are approximate. Seller shall not be liable for any loss or expense incurred by Buyer or others arising from Seller’s failure to meet the scheduled delivery shown on the Seller’s sales confirmation or for any loss or expense due to Seller’s selection of the carrier. Delays or changes in schedules due to Buyer directed actions are subject to price adjustments. Absent any instructions by Buyer prior to delivery, Seller will select the carrier to whom delivery will be made for shipments to Buyer.

(c) Seller reserves the right to allocate production and deliveries among its various customers at Seller’s sole discretion.

(d) Buyer will be deemed to have waived any and all claims for shipments containing less than the number of items indicated on the shipping documents unless written notice of such claims is received by Seller within fifteen days after Buyer receives shipment.

6. EXCUSABLE FAILURES AND DELAYS IN PERFORMANCE:

Seller shall not be responsible or liable for losses or damages arising from any failure of Seller to perform or delays in Seller’s performance due, in whole or in part, to causes beyond its reasonable control. Such causes shall include, but are not limited to: acts of God, fire, explosion, acts of the public enemy, war, rebellion, insurrection, sabotage, labor disputes (regardless of the reasonableness of demands of labor), shortages of labor, fuel, power, or materials, failure or delays in transportation, equipment or machinery breakdowns, failure of Seller’s sources of supplies, acts, order or priorities (whether compliance is mandatory or voluntary) of any government or any state or political subdivision or agency thereof, judicial action, or delays by Seller’s suppliers.

7. INSPECTION AND ACCEPTANCE:

Upon arrival of the items at the place to which Buyer has ordered the items to be shipped, Buyer will inspect the items at its expense and, if the items are found not to conform to this contract, will give written notice to the Seller within 15 days after arrival of the items, specifically setting forth the manner in which the items do not conform. Rejected items must be returned to the Seller, transportation charges prepaid by the Buyer, for replacement upon receiving authorization and shipping instructions from authorized personnel of Seller. If Buyer retains the items after their arrival without giving Seller such notice as required, such failure will constitute an irrevocable acceptance of the items by Buyer. Seller reserves the right to charge to Buyer any costs resulting from the testing, handling and disposition of any items returned by Buyer which are found by Seller to conform to this contract. Acceptance of items shipped is a warranty by Buyer that Buyer is solvent as of the date of shipment.

8. PACKAGING:

Packaging for commercial shipment is included in the quoted price. Reasonable care will be exercised by Seller in packaging items for shipment and no responsibility is assumed by Seller for delay, breakage or damage after having made delivery to the carrier. All claims for breakage or damage shall be made to the carrier, and Seller will render reasonable assistance in securing satisfactory adjustment of such claims.

9. CHANGES TO SPECIFICATIONS:

Seller reserves the right to change the specifications of any item appearing in Seller’s catalogs, data sheets, advertisements and web sites without notice. If changes to specifications are made, Seller assumes no obligation to change items previously purchased or to continue to supply discontinued items. Seller may substitute items manufactured to such modified specifications for those specified herein provided such items substantially conform to this contract.

10. PATENTS:

(a) Buyer shall indemnity, defend and hold Seller harmless against any damages, expenses, costs, reasonable attorney’s fees, or losses resulting from any legal action or claim made against Seller, either severally or jointly with Buyer, or any suit or proceeding based thereon, for infringement (either direct or contributory) of patents, trademarks, or for unfair competition based upon or arising from; (i) compliance with Buyer’s designs, specifications, or instructions; (ii) the use of any item or any part thereof furnished hereunder, in combination with goods not supplied by Seller; (iii) in connection with a manufacturing or other process utilizing any item or part thereof, furnished hereunder.

(b) Items or any part thereof sold hereunder may be protected by intellectual property rights of Seller or Seller’s suppliers, including but not limited to rights under issued and pending patents, copyright rights, trademark rights and trade secret rights. Neither the sale of items or any parts thereof hereunder nor the provision by Seller of any supporting or related documentation, technical information or advice shall confer on Buyer any license, express or implied, under any intellectual property rights of Seller covering or related to; (i) apparatus with which the items or parts thereof may be used; (ii) any process, machine use or application in connection with which the items or parts thereof may be used; (iii) the process of their manufacture. Seller makes no warranty express or implied that the use of its products will not infringe the intellectual property or other rights of third parties with respect to any particular use or application including, but not limited to, consequential or incidental damages.

(c) Items included in this contract of a nature commonly described as "software" or "programs" are understood to be offered on the basis of a license from Seller to Buyer to use same, and no title or intellectual property rights are conferred on Buyer by this licensed use whether for due consideration or not. Conditions controlling Buyer’s licensed use of Seller’s software are defined in the End User License Agreement (hereinafter EULA) included with such software. Buyer must accept the conditions of the EULA as a condition of using Seller’s software.

(c) The foregoing states the sole and exclusive liability of the parties hereof for patent infringement and is in lieu of all warranties express, implied or statutory with respect thereof.

11. WARRANTY:

(a) Seller warrants that standard items delivered hereunder will be free from defects in material and workmanship and will substantially conform to the specifications listed on Seller’s data sheet or catalogs for such items as identified by Seller’s part number, or other specifications separately approved in writing by authorized officer of Seller under normal use and service for a period of 180 days from the date of shipment.

(b) Seller makes no warranty or guarantee with respect to non-standard, modified or custom manufactured items included in this contract. Any warrantee for same must be the subject of a separate agreement between Seller and Buyer which must be signed by an authorized officer of Seller.

(c) with respect to items delivered hereunder, Buyer agrees to accept responsibility for (i) their selection to achieve Buyer’s intended results; (ii) their use; (iii) the results obtained therefrom; and (iv) the selection of, use of and results obtained from any equipment programs or services not provided by Seller and used in connection with items delivered hereunder.

(d) These warranties are in lieu of all other warranties expressed or implied, including but not limited to any implied warranties of merchantability or fitness for any particular purpose.

12. REMEDIES AND DAMAGES:

(a) if the items furnished by Seller fail to conform to this contract, including, but not limited to Seller’s warranty, Seller’s sole and exclusive liability shall be at Seller’s option to repair, replace or credit Buyer’s account for any such items which are returned by Buyer during the applicable warranty period set forth above, provided that; (i) Seller has received written notice within fifteen (15) days after Buyer discovered or should have discovered any defect; (ii) the defective items are returned to Seller upon Seller’s authorization, transportation charges prepaid by Buyer; and (iii) Seller’s examination of such items discloses to Seller’s satisfaction that defects in such items have not been caused by improper handling, storage, testing, installation, misuse, neglect, repair , alteration, or damage by rain, fire or casualty, or by accident. The aforementioned provisions do not extend the original warranty period of any article which has been repaired or replaced by Seller.

(b) The total liability of Seller to Buyer, if any, under this contract for breach of contract or warranty, negligence, or otherwise shall in no event exceed the contract price for the item specified herein. In no event shall Seller be liable to Buyer or others for special, collateral, incidental, punitive, or consequential damages for its negligence or breach of any of the provisions of this contract, including without limitation, provisions regarding warranties, guarantees, indemnities, and patent infringement, or based upon any claims, demands, settlement, or lawsuits arising from, or in connection with, the items sold hereunder, such damages including, but not limited to, costs of removal and reinstallation of items, loss of goodwill, loss of profits, or loss of use even if Seller has been advised of the possibility thereof. Buyer shall be deemed to assume all liability for any and all damages arising from or in connection with the use or misuse of the items by Buyer, its employees, customers and others.

(c) The remedies provided Seller in this contract shall be cumulative and in addition to any other remedies provided by law or equity. A wavier of a breach of any provision hereof shall not constitute a waiver of any other breach.

(d) Seller shall not be liable or responsible for, and Buyer, at its own expense, shall indemnify, hold harmless and defend Seller from and against, any and all suits, actions, losses, damages, claim or liability of any character, type or description, including, without limitation, all expenses of litigation, court costs and attorneys fees for injury or death to any person, or injury to any or property, received or sustained by any person or person or property, arising out of or occasioned by, directly or indirectly (i) the failure or defectiveness of any item furnished by Seller hereunder, including claims and damages arising in whole or in part from the negligence of Seller; or (ii) the use or misuse by Buyer, Buyer’s employees, Buyer’s customers or others of any item furnished by Seller hereunder. These provisions are intended to indemnity the Seller against the results of its own negligence.

13. CANCELLATION:

Buyer may not change, reschedule or cancel any orders scheduled for delivery except upon a minimum of thirty (30) days written notice to Seller, accepted in writing by Seller. On orders for custom items and items manufactured in whole or in part to Buyer’s specifications, Buyer shall be liable for one hundred percent of the gross sale price for work-in-progress material during the 120 day period prior to the scheduled date for shipment shown on Seller’s sales order confirmation.

14. PROPRIETARY DATA:

Buyer agrees not to use or disclose drawings, specifications, technical information or other data furnished by Seller and identified by Seller as confidential or proprietary data without the prior written consent of Seller. Buyer recognizes that such proprietary data is unique and consents to the remedy of injunction in addition to damages for violation of these provisions. Nothing in this clause, however, shall restrict Buyer’s right to use or disclose drawings, specifications, technical information or other data which are to become generally known to the public without the breach of this clause by Buyer, or are rightfully obtained from sources.

15. PROHIBITED APPLICATIONS:

Seller’s products are not designed, intended or authorized for use as components in systems intended for surgical implant into the body, or for applications intended to support or sustain life, or for any other application in which the failure of a product of Seller could create a situation where personal injury or death may occur.

16. APPLICABLE LAW:

This contract shall be governed by and construed in accordance with the laws of the State of Florida. Buyer agrees that service of process upon it shall be considered in all respects and for all purposes complete and binding if copies of all such process are mailed to it at the address appearing on Seller’s invoice, quotation or sales confirmation by registered mail, return receipt requested.

17. GENERAL:

(a) This invoice, confirmation or quotation, including these terms and conditions and all attachments and documents incorporated by reference herein, constitute the complete and exclusive statement of the terms and conditions of the agreement between Seller and Buyer and supersede all prior representations, agreements, or subject matter hereof. No modification, amendment, rescission, waver or other change to this contract shall be binding on Seller, nor may any claim or right arising out of breach of this contract be discharged in whole or in part by waiver or renunciation of the claim or right, unless made in writing and signed by a duly authorized representative of Seller. Seller may decline to perform further under this contract without in any way affecting its rights hereunder. If, despite any default by Buyer, Seller elects to continue to perform such election shall not constitute a waiver by Seller of any default of Buyer or in any way affect Seller’s legal remedies for any such default.

(b) Buyer shall not assign, delegate, or subcontract any of its obligations hereunder to any third party without the express written consent of Seller. No consent shall be deemed to relieve Buyer of its obligations to comply fully with the requirements hereof. Buyer affirms that there exist no third party beneficiaries to Buyer’s rights hereunder unless Buyer specifically identifies such beneficiary on the face of Buyer’s order or Buyer’s acceptance of Seller’s quotation.

(c) In the event of the appointment of a trustee, receiver, or liquidator for all or a portion of Buyer’s property, Buyer’s insolvency, or any voluntary petition in bankruptcy by or against Buyer, Seller may terminate this contract without further obligation or liability of Seller to Buyer.

(d) Buyer agrees that, with respect to the resale or any other disposition of items sold hereunder, Buyer shall comply fully with the export control laws and regulations of the United States Government and applicable laws and regulations of any other country.

(e) In the event any one or more of the provisions contained in this contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

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