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  1. M-Cor Inc. Terms and Conditions

    This Agreement is effective as of the date on which M-Cor Inc. issues an order acknowledgment (“Acknowledgment”) which is accepted by the other party (“Customer”).

    WHEREAS, Customer is desirous of purchasing products from M-Cor Inc. identified in the Acknowledgment (“Products”) under Customer’s standard terms and conditions provided in their documentation and/or other terms and conditions (collectively, “Customer Terms and Conditions”); and

    WHEREAS, M-Cor Inc. is desirous of supplying Products to Customer under certain terms and conditions that reflect the economics of price for such Products and corresponding risks allocated to each party in connection with such Products, and M-Cor Inc. thus conditions its acceptance to supply Products to Customer on such supply of Products being under the terms and conditions of this Agreement rather than the Customer Terms and Conditions; and

    WHEREAS, Customer and M-Cor Inc. are mutually desirous of amending and modifying the Customer Terms and Conditions, in accordance with this Agreement;

    NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:

    Contract Formation and Acceptance. This Agreement becomes a legally binding contract upon M-Cor Inc.’s issuance of an Acknowledgment and Customer’s acceptance thereof. Customer’s acceptance of the Acknowledgment constitutes acceptance of all terms and conditions contained herein.

    Acceptance and Price. The order is accepted by M-Cor Inc. conditioned on Customer’s full acceptance of this Agreement and on Customer’s maintenance of a current standing within M-Cor Inc.’s terms of payment incurred by this and all other past and present contracts.

    Price. The price for Products shall be the amount provided in the Acknowledgment (“Price”). The Price for Products is exclusive of any and all taxes or duties of any government or political subdivision, including a value added tax (VAT), state and local sales, use, and excise taxes, and duties, and costs and fees required to comply with this Agreement. Customer shall be responsible for the payment of all such taxes, duties, and other fees or charges that may be imposed with respect to the purchase and sale and delivery of the products or shall provide M-Cor Inc. with appropriate certification of exemption. In the event that Customer fails to provide appropriate certification of exemption, Customer shall promptly pay or reimburse, as applicable, any such taxes, fees, or charges upon notice from M-Cor Inc. The Price may be adjusted if M-Cor Inc.’s applicable raw material costs vary by +/- five percent (5%) from the date of the Acknowledgment.

    Payment. M-Cor Inc. shall issue an invoice to Customer at the time of or following each shipment of Products. The payment terms shall be net thirty (30) days, unless M-Cor Inc. expressly agrees in writing to other payment terms. Customer shall remit payment to M-Cor Inc. in accordance with the applicable payment terms. Customer’s obligation to pay for Products shall survive any termination or expiration of this Agreement.

    Delivery. Products will be provided to Customer Ex Works (as defined in Incoterms 2010) at the applicable M-Cor Inc. facilities. Title and risk of loss for the Products shall transfer to Customer immediately upon M-Cor Inc. loading the Products onto or into the carrier’s vehicle at M-Cor Inc.’s facility. Once the carrier accepts the shipment, the Products become the Customer’s property and responsibility. Customer shall be responsible for all shipping costs, and any shipping costs paid by M-Cor Inc. shall be invoiced to Customer and paid in accordance with the payment terms set forth herein. Delivery dates as acknowledged are to be considered as given in good faith within the bounds of business-like considerations and are subject to change without notice upon any contingency beyond the control of M-Cor Inc. M-Cor Inc. may elect to ship within +/- ten percent (10%) of the order quantity specified in the Acknowledgment.

    Modification/Cancellation. Customer may cancel or modify any order at any time prior to M-Cor Inc.’s issuance of an Acknowledgment. Upon M-Cor Inc.’s issuance of an Acknowledgment and Customer’s acceptance thereof, the order becomes non-cancellable to the maximum extent permitted by law. In the event M-Cor Inc. permits a cancellation after acceptance of the Acknowledgment, Customer shall be liable for:

    (a) All raw materials and components purchased or committed to by M-Cor Inc. for the manufacture of Products; (b) Any work-in-process or finished Products manufactured up to the date of cancellation; (c) Any supplier cancellation charges incurred by M-Cor Inc.; (d) Reasonable overhead and profit on the above items; and (e) Any other costs or damages incurred by M-Cor Inc. as a direct result of such cancellation.

    Customer must submit any cancellation request in writing. M-Cor Inc. shall have sole discretion whether to accept such cancellation request. If M-Cor Inc. has begun procurement of materials or production activities for the order, any cancellation shall be subject to the above charges regardless of when the cancellation request is made.

  2. Inspection and/or Audit. Notwithstanding anything to the contrary herein, the Customer Terms and Conditions, the Purchase Order, or any supply agreement or quality agreement between the parties, M-Cor Inc. shall not be obligated to provide Customer, or any third party, with access to proprietary areas of M-Cor Inc.’ facilities or to proprietary portions of M-Cor Inc.’ records or information. Without limiting the foregoing, before any audit or inspection of M-Cor Inc.’ facilities and/or records or information hereunder, the Customer and any such applicable third party shall execute a confidentiality agreement that is acceptable to M-Cor Inc..
  3. Warranty. M-Cor Inc. warrants that Products shall conform to the applicable mutually agreed upon Specifications. Customer and M-Cor Inc. each warrant that it and its employees will comply with the terms of this Agreement and any current applicable international, federal, state and local laws, rules, and regulations, as appropriate. Notwithstanding any warranties specified in the Customer Terms and Conditions, EXCEPT AS EXCEPT AS SPECIFICALLY REQUIRED BY LAW, ALL OTHER WARRANTIES (INCLUDING ANY WARRANTIES SPECIFIED IN THE CUSTOMER TERMS AND CONDITIONS), WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO ANY PRODUCTS, ARE SPECIFICALLY DISCLAIMED.
  4. Liability. Except as otherwise expressly agreed in writing by the parties, neither party shall be liable to the other for any incidental, indirect, consequential, special, exemplary or punitive damages incurred by the other in connection with the contemplated transaction, including, but not limited to, a loss of sales, profits or goodwill, whether as a result of a breach of contract, breach of warranty or tort (including negligence or strict liability), indemnification, or otherwise. Notwithstanding anything to the contrary in the Customer Terms and Conditions, or any supply agreement or quality agreement between the parties, M-Cor Inc.’ liability for any and all liabilities, claims, causes of action, suits, losses, expenses, damages, settlement costs and reasonable attorneys’ fees (“Causes of Action”) shall be limited to the lesser of (i) twenty-five thousand dollars ($25,000), or (ii) five (5) times the total amount of money paid to M-Cor Inc. by Customer for Products provided under the applicable Purchase Order.
  5. Capacity Flexibility. If for any reason including but not limited to Force Majeure, M-Cor Inc. is unable to supply the total demand for Products specified herein, M-Cor Inc. may distribute its available supply or capacity among any or all purchasers, as well as businesses and affiliates of M-Cor Inc., on such basis as M-Cor Inc. may deem fair and practical in its sole discretion, without liability for any failure of performance which may result therefrom.
  6. Non Conformances. Customer shall inspect Products received from M-Cor Inc. within fifteen (15) business days of receiving such Products. In the event that Customer determines that certain Products do not conform to the applicable Specifications (“Non-Conforming Product”), Customer shall provide prompt written notice to M-Cor Inc. of such non- conformance. Such notice of non-conformance shall at least identify the Non-Conforming Product and sufficiently describe such non-conformance, including representative samples to enable M-Cor Inc. to understand the alleged non- conformance. M-Cor Inc. shall have a reasonable opportunity, not to exceed twenty (20) business days from receipt of notification from Customer of the non-conformance, to inspect any alleged Non-Conforming Product. In the event that M-Cor Inc. agrees with Customer’s determination that a Product is Non-Conforming Product, M-Cor Inc. shall replace or repair such Non-Conforming Product. If repair of such Non-Conforming Product is not feasible, M-Cor Inc. only obligation is to replace the defective item. Order, or any supply agreement or quality agreement between the parties, M-Cor Inc.’ entire liability with respect to Non-Conforming Product (e.g., that is rejected by Customer upon inspection) shall not exceed the sales price for the Non-Conforming Product that Customer actually paid to M-Cor Inc..
  7. Intellectual Property. Nothing contained in this Agreement shall be construed, either expressly or implicitly, to grant to one party any rights by license or otherwise in the confidential information it receives hereunder, or to any patent, copyright, trademark or other intellectual property right.
  8. Indemnification of Customer. Subject to Section 9 hereof, M-Cor Inc. will defend, indemnify and hold harmless Customer and its affiliates, and officers, directors, employees, and agents thereof, from and against any and all Causes of Action incurred by Customer in connection with any third-party claim for (a) any breach of this Agreement by M-Cor Inc., and (b) infringement of a third-party intellectual property right by the Product or the manufacturing of the Product; provided, however, that such Causes of Action are in no way attributable to the negligence or willful misconduct of Customer. The afore-stated provision shall not apply if and to the extent the infringement of intellectual property rights is caused (i) by the use of delivered Products being manufactured by M-Cor Inc. according to Specifications, or drawings, models or similar descriptions provided by Customer, (ii) by alterations or variations of the Products by Customer after delivery by M-Cor Inc., or (iii) by the combination of Products with other components to derive the devices or products of Customer, (iv) by product liability relating to the devices or products of Customer, provided, however, that such causes of action are in no way attributable to the negligence or willful misconduct of M-Cor Inc., (v) the use or mis-use of the Products provided to Customer by M-Cor Inc., or any devices or products of Customer.
  9. Indemnification of M-Cor Inc.. Customer will defend, indemnify and hold harmless M-Cor Inc. and its affiliates, and officers, directors, employees, and agents thereof, from and against any and all Causes of Action incurred by M-Cor Inc. in connection with any third-party claim for (a) any third-party claim for any breach of this Agreement by Customer which relates to Customer’s actions or omissions, (b) infringement of a third-party intellectual property right by the Customer’s use of Products, including any infringement by the Customer’s devices or products (including medical devices) that use or are manufactured with Products hereunder (hereinafter “Devices”), provided that in no event shall Customer be deemed to have caused or induced any such infringement if infringement arose or resulted directly from manufacturing of such Products by or on behalf of M-Cor Inc., (c) product liability relating to the Devices; provided, however, that such causes of action are in no way attributable to the negligence or willful misconduct of M-Cor Inc., (d) the use, applicable, or mis-use of Products or Customer’s Devices, (e) the manufacture or testing of Customer’s Devices, provided, however, that such causes of action are in no way attributable to the negligence or willful misconduct of M-Cor Inc., (f) the engineering, specifications, or failure to provide accurate information to M-Cor Inc. regarding Customer’s Devices, provided, however, that such causes of action are in no way attributable to the negligence or willful misconduct of Customer, by M-Cor Inc., (g) the length of time Products provided hereunder will last in the use to which Customer or its Devices puts them, (h) non-compliance with any laws, regulations, or other governmental requirements applicable to the use or applications of the Products or medical devices, (i) the acts or omissions of any of Customer’s contractors or component suppliers that Customer engages directly or indirectly in the manufacture or assembly of its Devices other than M-Cor Inc..
  10. Confidentiality. Each party agrees that it shall not directly or indirectly disseminate or otherwise disclose, deliver or make available to any person outside its organization any of the Confidential Information (as defined below) it receives hereunder, and/or to use such Confidential Information it receives hereunder for any purpose other than in furtherance of its obligations hereunder. The receiving party may disclose the Confidential Information it receives hereunder only to persons within its organization and its attorneys who have a need to receive such Confidential Information in order to perform its obligations hereunder and who agree to confidentiality and non-use obligations with respect to the Confidential Information comparable to those set forth in this Agreement. Confidential Information shall mean any non-public scientific, technical, trade or business information disclosed by or on behalf of the disclosing party to the receiving party hereunder. Confidential Information may include, without limitation, matters of a technical nature, such as scientific, trade and engineering secrets, “know how”, formulas, designs, secret processes, machines, inventions, computer programs and documentation of such programs, samples, prototypes, research projects, information obtained by examination of any product, sample, or prototype, design,production equipment or drawings thereof, information about costs, profits, markets, sales, lists of customers, plans for future developments, and other information of a similar nature to the extent not available to the public. Confidential Information may be written, documentary, recorded, or otherwise fixed in a tangible medium, electronically, orally or visually, disclosed by the disclosing party, or acquired by the receiving party directly or indirectly from the other party; provided that in the case of any orally or visually disclosed information, for such information to be deemed Confidential Information for purposes of this Agreement, the disclosing party shall identify any such information as “Confidential” prior to disclosure and reduced to a written summary marked as confidential and delivered by the disclosing party to the receiving party within thirty (30) days after disclosure. Notwithstanding the foregoing, Confidential Information shall be deemed to include any non-public information obtained by a party in connection with an audit or inspection of the other party’s facilities and/or records, such audit being performed with respect to the supply of products by such other party. Notwithstanding anything to the contrary herein, the receiving party’s obligations with respect to “Confidential Information” it receives hereunder shall not apply to information to the extent such information: (i) was known to the receiving party at the time it was disclosed, other than by previous disclosure by or on behalf of the disclosing party, as evidenced by the receiving party’s written records at the time of disclosure; (ii) is at the time of disclosure or later becomes publicly known under circumstances involving no breach of this Agreement by the receiving party; (iii) is lawfully and in good faith made available to the receiving party’s by a third party who is not subject to obligations of confidentiality to the disclosing party with respect to such information; or (iv) is independently developed by the receiving party without the use of or reference to the Confidential Information, as demonstrated by documentary evidence. If required by law, the receiving party may disclose the Confidential Information it receives hereunder to a governmental authority or by order of a court of competent jurisdiction, provided that (a) the receiving party shall promptly notify the disclosing party and take reasonable steps to assist the disclosing party in contesting such request, requirement or order or otherwise protecting the disclosing party’s rights and (b) the receiving party shall limit the scope of such disclosure only to such portion of the Confidential Information that it is legally required to disclose. Notwithstanding anything to the contrary herein, the receiving party’s non-disclosure and non-use obligations under this Agreement with respect to Confidential Information it has received hereunder shall not expire until the date that is five (5) years after the corresponding Product was first shipped to Customer (and, with respect to any Confidential Information that constitutes trade secrets, for such longer period to the extent permitted by applicable law). Upon the disclosing party’s written request, the receiving party shall promptly return to the disclosing party all of the Confidential Information the receiving party has received hereunder and return or destroy all copies, summaries, synopses and abstracts of such Confidential Information in the receiving party’s possession (whether in written, graphic or machine- readable form), except that the receiving party may keep one copy of the Confidential Information it has received hereunder in its confidential files solely for the purpose of monitoring its rights and obligations under this Agreement.
  11. Quality. Unless M-Cor Inc. and Customer have otherwise agreed in writing to a quality agreement pertaining to quality obligations with respect to Product, the terms of M-Cor Inc.’ Standard Quality Terms shall control and govern the quality obligations of the parties with respect to Products to the extent that such Standard Quality Terms do not conflict with the terms of this Agreement. M-Cor Inc.’  Quality Terms can be obtained at quality terms.
  12. Force Majeure. Neither party shall be held responsible for any delay or failure in performance of any part of this Agreement resulting from any Act of God, fire, flood, explosion, war, strike, public health crisis (e.g., an endemic, pandemic, etc.), embargo, government requirement, civil or military authority, nature or the public enemy or any other causes not foreseeable or beyond the control of the party whose performance must be suspended or excused (such causes to include a lack of availability of raw material from M-Cor Inc.’ suppliers) (collectively “Force Majeure”). Such non-performing or delayed party shall give the other party prompt written notice of the Force Majeure.
  13. Use of Name. Except as provided below, one party shall not, and shall ensure that its affiliates shall not, use or register the name of the other party (e.g., “M-Cor Inc.” in the case of M-Cor Inc. being such other party) (alone or as part of another name) or any logos, seals, insignia or other words, names, symbols or devices that identify such other party or any unit, division or affiliate of such other party (“Other Party Names”) for any purpose except with the prior written approval of, and in accordance with restrictions required by, such other party. This restriction shall not apply to any information required by law to be disclosed to any governmental entity.
  1. Products Not for Resale. Customer shall not offer Products it receives hereunder for sale on any electronic commerce platform (e.g., Amazon, e-Bay, Alibaba, etc.), without the prior express written permission of M-Cor Inc.
  2. No Waiver. The failure or delay of either party to enforce at any time any provision of this Agreement shall not constitute a waiver of such party’s right thereafter to enforce each and every provision of this Agreement.
  3. Term. The term of this Agreement shall commence on the date on which Customer accepts M-Cor Inc.’s Acknowledgment. The Agreement shall remain in effect for all Products supplied pursuant to such Acknowledgment and any subsequent Acknowledgments accepted by Customer, unless terminated in accordance with the provisions herein.
  4. Survival. The agreements, representations, warranties, covenants, duties and obligations set forth in these terms that by their terms or to the extent necessary for consistency with the intent and purpose of these terms extend beyond the completion of the transactions contemplated hereunder shall survive thereafter.
  5. Entire Agreement. This Agreement constitutes the entire and only understanding between the parties with respect to the subject matter of this Agreement, and supersedes any prior or collateral agreement or understanding between them. Customer and M-Cor Inc. agree that the Customer Terms and Conditions are hereby null and void, and that this Agreement shall control the parties’ respective rights and obligations with respect to the supply of Products. This Agreement may be amended or modified only by a written instrument that specifically references this Agreement, and that is signed by an authorized representative of each party. Without limiting the foregoing, no modification shall be affected by any terms or conditions contained in Customer’s documents that conflict with or are in addition to the terms contained in this Agreement.
  6. Severability. In the event that a court of competent jurisdiction finds any term or clause in this Agreement to be invalid, unenforceable, or illegal, the same will not have an impact on other terms or clauses in the Agreement or the entire Agreement. However, such a term or clause may be revised to the extent required according to the opinion of the court to render the Agreement enforceable or valid, and the rights and responsibilities of the parties shall be interpreted and enforced accordingly, so as to preserve their agreement and intent to the fullest possible extent.

  7. Acceptance of Terms. By accepting M-Cor Inc.’s order acknowledgment for delivery of goods, Customer expressly agrees to and accepts all terms and conditions contained in this Agreement. This acceptance is binding and supersedes any contrary terms in Customer’s purchase order or other documents. Customer acknowledges that the delivery and receipt of Products is contingent upon these terms and conditions.

    Miscellaneous. This Agreement may not be assigned or transferred by either party without the other party’s prior express written consent. Without limiting the foregoing, Agreement shall be binding upon and shall inure to the benefit of the legal successors of the respective parties. The failure or delay of either party to enforce at any time any provision of this Agreement shall not constitute a waiver of such party’s right thereafter to enforce each and every provision of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Montana, without regard to any choice of law principle that would dictate the application of the law of another jurisdiction. The parties hereby consent to the sole jurisdiction of the state and federal courts sitting in Helena Mt., without restricting any right of appeal.