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Terms

First Healthcare Products, Inc.
Standard Terms And Conditions

The following Standard Terms and Conditions will apply to all orders shipped and billed by First Healthcare Products, Inc. (First) to all customers (Customer):

1.0   ORDERING; SHIPPING; DELIVERY.

1.1  Payment Terms. One hundred percent (100%) of the purchase price must be paid within thirty (30) days following Acceptance of Product(s)

Customer may pay for Products using electronic fund transfers, ACH, or checks.

1.2  Ordering; Shipping Terms.  Orders can be placed by telephone, facsimile, or email.  Except as otherwise provided below all costs of transportation and insurance, for all shipments of Products shall be paid by Customer.  Such charges may be prepaid by First and invoiced to Customer for payment pursuant to the payment terms set forth in Section 1.1.  Title and risk of loss for all orders shall transfer to Customer upon shipment.

1.3  Minimum Order.  First has a minimum purchase order requirement of $20.00. 

1.4  Acceptance.  “Acceptance” of Products by Customer shall occur when Customer receives Products.

1.5 Rejection of Products.  Customer shall have the right to reject any Product(s) at time of receipt based on visible defects in the Product(s) or visible damage to packaging.  First will, upon receipt of notice from such Customer of any Rejection Event and a copy of the bill of lading signed “Rejected as Damaged”, cause the removal of the Product(s) and immediately refund to the Customer any funds paid for the Product(s).  In the event Product(s) are rejected by Customer and Customer does not provide a copy of the bill of lading signed “Rejected as Damaged” First will not refund to the Customer any funds or issue credit of any kind unless and until First approves the return and/or settles a claim with the carrier used.

1.6  Return of Products; Restocking Fee.  First has the right to charge a restocking fee in connection with any returns of Product(s) under this Agreement.  All returns are subject to the requirements indicated on the First’s Returned Goods Policy, which can be found at www.firstproducts.com.

2.0   PRICING TERMS.

2.1  Pricing. Product pricing is set forth separately on a case by case basis.  First reserves the right to change any pricing upon 30 days notice.

3.0  COMPLIANCE WITH LAWS AND REGULATIONS.

3.1  General. First represents and warrants that throughout the Term of this Agreement and any extension hereof, First and all Products shall be and shall remain in compliance with all applicable federal, state and local laws and regulations

First and Customer agree and acknowledge that by entering into this Agreement they have not established, and do not intend to establish, a “business associate” relationship, as such term is defined under HIPAA.  Under no circumstances will either Party request from the other Party, nor will either Party provide to the other Party, any protected health information. 

4.0  INDEMNIFICATION; WARRANTIES; SPECIFICATIONS; NOTICES.

4.1  Indemnification.  First hereby agrees to indemnify, defend and hold harmless Customer and their respective parents, subsidiaries, affiliates, directors, officers, employees, agents, and insurers from and against any and all Claims arising out of the acts or omissions of First and its employees and agents acting under its control or supervision.   Customer hereby agrees to indemnify, defend and hold harmless First and its affiliates, directors, officers, employees, agents, and insurers from and against any and all Claims arising out of the acts or omissions of Customer and its employees and agents acting under its control or supervision.

The indemnified party shall give written notice of a Claim to the indemnifying party as soon as practicable; provided, however, the failure of any indemnified party to give notice shall not relieve the indemnifying party of its obligations, except to the extent that the indemnifying party actually is prejudiced by such failure to give notice.  Promptly upon request, the indemnifying party shall advance to the indemnified party any and all expenses incurred by the indemnified party in connection with a Claim for which the indemnified party is entitled to indemnification.  The indemnifying party shall not enter into any settlement agreement on behalf of the indemnified party without the prior written consent of the indemnified party.

4.2  Warranties and Published Specifications.  First hereby warrants that all Products supplied hereunder shall be free and clear of all liens and encumbrances, that First has good and merchantable title, and that each of the Products shall be free from defects in design, material, workmanship and labeling and shall conform to the published specifications for such Product and First's representations regarding the functions and uses for which the Product is marketed.  A detailed description of additional warranties applicable to the Products is available at www.firstproducts.com

5.0  CONFIDENTIALITY.

5.1  Confidential Information.  For the purposes of this Agreement, confidential information (“Confidential Information”) shall mean all proprietary, secret or confidential information or data relating to Customer or First and their respective operations, employees, services, patients or customers, including purchase data and pricing information under this Agreement.

5.2  Protection of Confidential Information.  First and Customer acknowledge that First or Customer may disclose Confidential Information to each other in connection with this Agreement.  If First or Customer receives Confidential Information, it shall: (a) maintain the Confidential Information in strict confidence; (b) use at least the same degree of care in maintaining the secrecy of the Confidential Information as it uses in maintaining the secrecy of its own proprietary, secret, or confidential information, but in no event less than a reasonable degree of care; (c) use Confidential Information only to fulfill its obligations under this Agreement and for internal business purposes; and (d) return or destroy all documents, copies, notes, or other materials containing any portion of the Confidential Information upon request by Customer or First.  

5.3  Agreement Confidentiality.  Except as otherwise permitted by this Agreement, neither Healthsouth nor First shall disclose the Terms of this Agreement to any other person or entity outside its organization and affiliates other than to a Participating Member, a prospective Participating Member, or as required by law. For purposes of this provision, an affiliate is an entity in which Healthsouth or First, as appropriate, maintains an ownership position in or a contractual relationship with, and the disclosure is required so that the disclosing party may fulfill its obligations hereunder

5.4  Limitation on Obligation.  First and Customer shall have no obligation concerning any portion of the Confidential Information which: (a) was known to it before receipt, directly or indirectly, from the disclosing party; (b) is lawfully obtained, directly or indirectly, by it from a non-party which was under no obligation of confidentiality; (c) is or becomes publicly available other than as a result of an act or failure to act by the receiving party; (d) is required to be disclosed by the receiving party by applicable law or legal process; or (e) is developed by the receiving party independent of the Confidential Information disclosed by the disclosing party.  The receiving party shall not disclose any portion of the Confidential Information to any person except those of its employees and affiliates having a need to know such portion to accomplish the purposes contemplated by this Agreement.

6.0  MISCELLANEOUS.

6.1  Governing Law and Venue.  This Agreement is being delivered and executed in the State of New York.  Any controversy, claim or dispute arising out of or relating to this Agreement between Customer and First shall be resolved exclusively by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”).  The arbitration shall be heard before a panel of three (3) neutral arbitrators who will have no power or authority to award treble, punitive, exemplary, consequential, or other damages not measured by the prevailing party’s actual damages.  The proceeding will be held in Buffalo, New York, and the costs of the arbitration, as well as reasonable attorney’s fee as determined by the arbitrators, will be awarded to the prevailing party.  The decision of the arbitrators shall be final and binding and the parties irrevocably submit to the jurisdiction of the United States District Court for the Western District of New York for enforcement of the arbitral award.  The parties agree to be subject to personal jurisdiction in and consent to service of process issued by a court in which venue is proper as defined in this Section 6.1.

6.2  Modification and Waiver.  Except as provided below or otherwise expressly permitted by this Agreement, no modification of this Agreement shall be deemed effective unless in writing and signed by each of the parties hereto.  Any waiver of a breach of any provision(s) of this Agreement shall not be deemed effective unless in writing and signed by the party against whom enforcement of the waiver is sought.

6.3  Headings.  The descriptive headings of the sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any provision hereof.

6.4  Assignment.  Neither party may assign, subcontract, delegate or otherwise transfer this Agreement or any of its rights or obligations here under, nor may it contract with third parties to perform any of its obligations here under except as contemplated in this Agreement, without the other party's prior written consent.

6.5  Severability.  If any part of this Agreement shall be determined to be invalid, illegal or unenforceable by any valid Act of Congress or act of any legislature or by any regulation duly promulgated by the United States or a state acting in accordance with the law, or declared null and void by any court of competent jurisdiction, then such part shall be reformed, if possible, to conform to the law and, in any event, the remaining parts of this Agreement shall be fully effective and operative insofar as reasonably possible.

6.6  Notices.  Any notice required to be given pursuant to the terms and provisions hereof shall be in writing, postage and delivery charges pre-paid, and shall be sent by hand delivery, overnight mail service, first-class mail or certified mail, return receipt requested, to Customer or First at the addresses set forth on the Cover Sheet.  Any party may change the address to which notices are to be sent by notice given in accordance with the provisions of this section.  Notices hereunder shall be deemed to have been given, and shall be effective upon actual receipt by the other party, or, if mailed, upon the earlier of the fifth (5th) day after mailing or actual receipt by the other party.

6.7  Independent Contractors.  The parties' relationship hereunder is that of independent contractors.  This Agreement does not create any employment, agency, franchise, joint venture, partnership or other similar legal relationship between Customer and First.  Neither party has the authority to bind or act on behalf of the other party except as otherwise specifically stated herein.

6.8  Attorneys' Fees.  Should any party engage an attorney for the purpose of enforcing this Agreement or any judgment based hereon in any court, including bankruptcy court, courts of appeal or arbitration proceedings, the prevailing party shall be entitled to receive its reasonable attorneys' fees and costs in addition to any other relief granted.

6.9  Binding Effect.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.  If a digital signature is used to sign this Agreement, all parties agree that it will have the same value, force and effect as a written signature.

6.10  Force Majeure.  The obligations of either party to perform under this Agreement will be excused during each period of delay caused by acts of God, war or terrorism, or by shortages of power or materials or government orders which are beyond the reasonable control of the party obligated to perform and prevents the party from being able to perform ("Force Majeure Event").  In the event that either party ceases to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event, such party shall: (a) immediately notify the other party in writing of such Force Majeure Event and its expected duration; (b) take all reasonable steps to recommence performance of its obligations under this Agreement as soon as possible.  In the event that any Force Majeure Event delays a party's performance for more than thirty (30) days following notice by such party pursuant to this Agreement, the other party may terminate this Agreement immediately upon written notice to such party.

6.11  Entire Agreement.  This Agreement, including the Cover Sheet, the Additional Terms and Conditions (if any) and all Exhibits hereto, constitutes the entire understanding and agreement between First and Customer concerning the subject matter hereof, and supersedes all prior negotiations, agreements and understandings between First and Customer, whether oral or in writing, concerning the subject matter hereof.

6.12 Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.