Supplier Terms and Conditions

PURCHASE ORDER TERMS AND CONDITIONS

These purchase order terms and conditions (the “Terms”) together with the terms and conditions on the face of the purchase order (the “Order”; the Order together with the Terms, collectively, the “Agreement”) set forth the terms and conditions under which the party to whom the Order is issued (the “Supplier”) will supply the goods, software, and other items described in the Order (the “Products”) to Fresh Health, Inc. d/b/a Proclaim Health (“Proclaim”).

1. ORDERS.

   Supply of Products. Supplier will sell to Proclaim the Products specified in the Order. The Order and these Terms are deemed to have been accepted and is binding on both parties if Supplier: (a) signs and returns the Order to Proclaim; (b) begins performance of the Order; or (c) acknowledges the Order by e-mail, facsimile, or any other commercially reasonable means. The Order expressly limits Supplier’s acceptance to the terms of the Agreement. The terms and conditions of this Agreement prevail over any terms or conditions contained in any other documentation and expressly exclude any of Supplier’s general terms and conditions of sale or any other document issued by Supplier in connection with the Order, all of which are hereby rejected. Proclaim does not makes any representation or promise as to the amount of business Supplier can expect at any time. If Proclaim provides any estimates of its needs, the estimates are only for the parties’ convenience and will not bind Proclaim to purchase any Product. Proclaim will not be liable for any actions taken by Supplier based on any estimates. This Agreement is nonexclusive. Proclaim may purchase any products and services from any other seller or supplier.

   Allocation. In the event the supply of Products hereunder is constrained for any reason, Supplier shall fulfill the Order for the Products issued by Proclaim before supplying other customers with any similar goods subject to the same constraint.

   License. Supplier hereby grants to Proclaim and its affiliates a worldwide, irrevocable, non-exclusive, fully paid up, transferable and assignable license under all of Supplier’s Proprietary Rights (as defined in Section 4.2 below) to use, offer to sell, import or distribute the Products, including, without limitation, as such Products may be combined with or incorporated into larger products, sub-assemblies or systems. If Supplier provides any software incorporated in or together with the Products, Supplier grants Proclaim and its affiliates a worldwide, irrevocable, non-exclusive, fully paid up, transferable and assignable license: (a) to install, use, distribute, operate and copy the software on any number of networked or non-networked systems at any facility or location; (b) to use, copy and distribute any software documentation as necessary or desirable in connection with the installation, use and operation of the software; (c) to use, import, modify and create derivative works from the software; and (d) to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties. For the purposes of Section 365(n) of Title 11, United States Code, all rights and licenses granted to Proclaim under this Section are licenses of rights to “intellectual property” as defined under Section 101(56) of Title 11, United States Code.

2. FULFILLMENT OF ORDERS.

   Deliveries. Supplier will deliver each Product to Proclaim at the “ship to” address specified in the Order no later than the date specified in the Order. All deliveries made pursuant to this Agreement must be complete. Proclaim may in its discretion reject any incomplete deliveries or late deliveries.

   Packaging. Supplier will properly package Products to protect against damage or deterioration during shipment, handling and storage. The method of shipment must be consistent with the nature of the shipment and hazards of transportation. Each shipment must be accompanied by a packing slip identifying all items included with the shipment.

   Time of the Essence; Delayed Delivery. Time is of the essence in Supplier’s performance under this Agreement. Supplier will immediately notify Proclaim in writing of any anticipated or actual delay in delivery of any Product, the reasons for such delay, and the actions being taken by Supplier to overcome or minimize the delay. If any of Supplier’s deliveries or performance fail to meet the schedule for any reason other than the occurrence of an excusable delay, Proclaim may, without limiting or affecting its other rights or remedies in any manner whatsoever, do any or all of the following: (a) require Supplier to expedite shipment of the affected Products at Supplier’s expense, (b) require Supplier to reimburse Proclaim immediately for all additional costs and expenses incurred as a result of such delay, and/or (c) cancel all or any portion of the affected Order. As used herein, “excusable delay” means any delay in making or accepting deliveries or performance, which results without any fault or negligence on the part of Supplier and which is due to causes beyond Supplier’s control; provided, however, that “excusable delay” shall not, however, mean or include financial difficulties or delays caused by any supplier. If the Order is subject to one or more excusable delays which persist for more than one (1) month in the aggregate, then Proclaim may cancel the then remaining balance of the Order.

   Risk of Loss; Shipping Terms. Supplier will deliver any Products to Proclaim DAP destination (Incoterms 2020), where the destination is the business address specified in the Order. All rights, title, interests, and all risks of loss and damage to any Product will pass to Proclaim upon Proclaim’s acceptance of such Product.
   Returns. If Proclaim returns any Product under this Agreement, such Product will be returned EXW (Incoterms 2020) Proclaim’s place of business, and Supplier will be the importer and exporter of record on all such transactions and will be directly responsible for ensuring that such returns comply with all Laws regarding the export or import of goods.

   Inspection and Acceptance. Proclaim may inspect the Products at any time, and Supplier will provide reasonable access and facilities for any inspection conducted prior to delivery. Proclaim’s acceptance of any Product will occur upon the earlier of: (a) thirty (30) days after delivery of such Product to Proclaim, unless Proclaim has given a written or electronic notice of noncompliance or rejection to Supplier, and (b) Proclaim’s written or electronic notice of acceptance of such Product after delivery of such Product to Proclaim. Proclaim’s acceptance of any Products will not relieve Supplier of any of its warranty or other obligations under this Agreement.

   Last Time Buys. Supplier shall ensure that it has sufficient capacity to manufacture and supply the anticipated demand for Products based upon Proclaim’s most recent blanket Order. Supplier shall provide written notice to Proclaim at least one hundred eighty (180) days in advance of the date of the discontinuation of any Product. Supplier shall permit Proclaim to make a last time buy of any materials related to such Products (“Materials”) at Supplier’s cost. With regard to Materials, Supplier will use commercially reasonable efforts to ensure it receives notice of the discontinuance of any Material at least one hundred eighty (180) days in advance of the date of such discontinuance. Supplier shall, only upon receiving notice from a Material supplier, notify Proclaim of the discontinuance of any Material. Upon Proclaim’s request, Supplier shall place last time buys for the discontinued Materials at least thirty (30) days prior to the date of the discontinuance. The supply chain personnel of both parties shall meet on at least a quarterly basis to discuss Supplier’s analysis of supply chain trends, risks posed by the suppliers of Materials included in then-current bills of materials, drive reports, and any other issues or concerns regarding the supply chain for the Products raised by either party.

   Consigned Property. Proclaim may in its discretion provide to Supplier certain materials and/or equipment owned by Proclaim and required to manufacture the Products (the “Consigned Property”). The Consigned Property shall remain the exclusive property of Proclaim at all times. The provision of any Consigned Property to Supplier shall not constitute, or confer upon Supplier any right, title or property interest therein. Supplier shall cooperate with Proclaim by executing any documents reasonably requested by Proclaim to enable Proclaim to protect its ownership of the Consigned Property. Supplier shall not cause, permit or authorize any liens or encumbrances to be placed upon any Consigned Property. Supplier shall at all times store all Consigned Property separate and apart from other materials or property owned or stored by Supplier. Supplier shall clearly label all Consigned Property as being consigned by Proclaim. All Consigned Property shall be treated by Supplier in accordance with any Proclaim directions and with the same degree of care as Supplier utilizes with respect to its own property of a similar nature, but in no event less than a reasonable degree of care. Supplier shall perform any standard operational maintenance as necessary to use any equipment that is Consigned Property (“Equipment”) and keep it in good working order in the ordinary course of the performance of the work under this Agreement. Supplier shall be financially responsible for the costs of maintaining and calibrating the Equipment while such Equipment is in Supplier’s care, custody and control. Supplier shall notify Proclaim promptly of any downtime or failures of the Equipment. Supplier shall ensure that all Consigned Property is used, operated and stored solely at the facility and in accordance with applicable laws and regulations (including any local health and safety requirements) and with all applicable specifications including calibration recommendations and automated calibration procedures. Supplier shall (a) verify receipt of all Consigned Property, (b) handle and manage all Consigned Property in conformance with any handling instructions provided by Proclaim, and (c) perform weekly cycle counts for Consigned Property. Supplier shall keep records of: (x) receipt of all Consigned Property; and (y) its weekly reconciliation process based on the cycle counts. Supplier shall provide all relevant records to Proclaim within forty-eight (48) hours of any discrepancy reports. Supplier shall also perform, at Proclaim’s reasonable request, a full physical inventory count of all Consigned Property. In the event of any Shrinkage (as defined below) in the inventory of Consigned Materials that exceeds three percent (3%) for the inventory period, Supplier shall pay to Proclaim an amount equal to the replacement value of the total amount of the Shrinkage. “Shrinkage” means the number of units of Consigned Materials that are lost, missing, stolen, damaged, or otherwise unaccounted for by Supplier during the inventory period. Supplier will carry appropriate insurance to cover all risks of loss or damage to the Consigned Property while in the care, custody or control of Supplier.

3. PRICE AND PAYMENT.

   Price. Proclaim will pay Supplier the amount specified in the Order for the Products specified in such Order. Supplier is entitled to no other compensation or reimbursement for or in connection with the Products. Supplier will bear sole responsibility for all costs and expenses incurred in connection with its performance under this Agreement.

   Invoicing; Payment Terms. Supplier will issue invoices for Product to Proclaim only after Proclaim has accepted such Product. Proclaim will remit all undisputed amounts within thirty (30) days following receipt of the invoice that complies with this Section. Each invoice will be in form and content reasonably acceptable to Proclaim and will contain reasonable detail describing the basis for the invoiced amounts, including a reference to the Order and a description of all Products delivered. Payments may be made according to Proclaim’s then-current payment policies, which may include electronic payment. Payment of an invoice without asserting a dispute is not a waiver of any claim or right. Proclaim is not required to pay any invoice received more than 120 days after acceptance of the Product covered by the invoice.

   Taxes. Supplier may charge and Proclaim will pay applicable federal, state or local sales or use taxes or value added taxes that Supplier is legally obligated to pay (“Taxes”), provided that such Taxes are stated on the original invoice that Supplier provides to Proclaim and Supplier’s invoices state such Taxes separately and meet the appropriate tax requirements for a valid tax invoice. Proclaim may provide Supplier an exemption certificate acceptable to the relevant taxing authority, in which case, Supplier shall not collect the Taxes covered by such certificate. Supplier will be responsible for all other taxes or fees (including interest and penalties) arising from transactions and the documentation of transactions under the Agreement. Proclaim may deduct or withhold any taxes that Proclaim determines it is obligated to withhold from any amounts payable to Supplier under this Agreement, and payment to Supplier as reduced by such deductions or withholdings will constitute full payment and settlement to Supplier of such amounts. Supplier will provide Proclaim with any forms, documents, or certifications as may be required for Proclaim to satisfy any information reporting or withholding Tax obligations with respect to any payments under this Agreement.

   Preferred Pricing. Supplier represents and warrants that prices for the Products provided to Proclaim under this Agreement and all of the terms of this Agreement are not and will not be less favorable than the prices and terms offered to any of Supplier's other commercial customers, unless the other customer receives lower prices or more favorable non-price treatment because of a higher volume of purchases than are being made by Proclaim. If Supplier offers lower prices or more favorable terms to any customer than are offered to Proclaim, then Supplier shall concurrently extend such prices or terms to Proclaim. Any amounts charged to Proclaim in excess of prices charged by Supplier to any other commercial customer for similar products shall promptly be refunded or credited to Proclaim.

   Setoff. Proclaim has the right of set-off, and may deduct from any invoice any payment, claim, credit, recoupment, discount or set-off owed or payable by Supplier to Proclaim (including damages, costs, or expenses incurred by Proclaim as a result of any failure of Supplier to perform under this Agreement).

4. REPRESENTATIONS AND WARRANTIES.

   Authority. Supplier represents and warrants to Proclaim that Supplier has all rights necessary for (and is not subject to any restriction, penalty, agreement, commitment, or Law which is violated by) its acceptance and delivery of this Agreement and performance of its obligations under this Agreement.

   Products. Supplier represents and warrants to Proclaim the following: (a) the Products, (including any components or materials incorporated therein) will be free from defects in design, materials and workmanship; (b) the Products will conform, beginning at the time of delivery and continuing for a period of one (1) year following acceptance (“Performance Warranty Period”), to the applicable performance capabilities, characteristics, and other descriptions and standards set forth in this Agreement, in the applicable Order, in any specifications and documentation provided by Supplier to Proclaim, and in published specifications and documentation (“Performance Warranty”); (c) the Products will be provided to Proclaim free of any liens, pledges, claims, mortgages, encumbrances, and other rights and interests of any party; (d) the Products (and Proclaim’s exercise of its rights under this Agreement with respect to the Products) will not infringe upon, violate or misappropriate any trademarks, trade secrets, copyrights, patents and any other intellectual property or proprietary rights in any country (collectively, “Proprietary Rights”) of any third party; and (e) the Products and all components and parts thereof are new, and not used, refurbished or reconditioned.

   Remedies. Without limiting any other rights or remedies that may be available to Proclaim, if any Products do not conform to any of the representations, warranties, and covenants set forth in this Agreement, Proclaim may in its sole discretion exercise one or more of the following rights: (a) retain such Product for correction by Supplier or others with an equitable reduction in price to account for the costs of such correction and the diminished value of such Product; (b) return such Product for timely cure by Supplier at Supplier’s sole cost and expense pursuant to Section 4.4 below; (c) return such Product to Supplier for full credit or refund; (d) purchase other products from third parties in substitution for such Product, in which event Supplier will promptly pay to Proclaim the costs of the substitute in excess of the price of such Product; and/or (e) terminate the Order with respect to such Product at no charge and without any liability to Proclaim. Proclaim will be entitled to recover from Supplier all costs and expenses reasonably incurred by Proclaim in connection with any of the foregoing (including all costs associated with delivery of the Product to Proclaim and return of the Product to Supplier).

   RMA Procedure. For any Products that do not comply with any Product warranty, Supplier will either, at its option and free of charge, repair or replace Products not conforming to the Product Warranty, provided Proclaim shall request a return materials authorization (“RMA”), and provide Supplier with a description of the nonconformities. Supplier shall issue an RMA to Proclaim within two (2) business days of receipt of Proclaim’s request. Within three (3) business days of Proclaim’s receipt of the RMA, Proclaim shall return the defective Products to the address specified by Supplier for that purpose and shall display the RMA on the packaging. Supplier shall notify Proclaim if Supplier cannot verify the defects in any returned Products and the parties shall mutually agree upon the disposal of such returned Products and costs therefor. If Supplier does not notify Proclaim that it has failed to verify the defects within five (5) business days of Supplier’s receipt of such Products, then at Supplier’s election and at Supplier’s expense, Supplier will repair or replace the defective Product within two (2) weeks or such other timeframe as may be agreed on the face of the Order and pay for all associated shipping and insurance costs. The Product warranties shall apply in respect of any repaired or replaced Product until the later of (i) the expiry of six (6) months after the date that the repaired or replaced Product is delivered by Supplier to Proclaim or (ii) the original expiration date of the Product Warranty Period for such Product.

   Epidemic Failure. For purposes of this Agreement, an “Epidemic Failure” will be deemed to have occurred if, with respect to either (a) the Product shipped by Supplier or any of its authorized distributors during any ninety (90) day period or (b) the total installed base of Product, more than three (3%) percent of such Product fail because of the same or similar defect or five (5%) percent fail due to cumulative defects. In the case of Epidemic Failure, Supplier and Proclaim will cooperate to implement a recovery plan. Supplier will be responsible for all costs incurred in rectifying any Epidemic Failure including, without limitation, for any solution, workaround, recovery plan or engineering change.

   Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SUPPLIER MAKES NO OTHER WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO THE PRODUCTS, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

5. COMPLIANCE WITH LAWS.

   Compliance with Laws. Supplier represents and warrants that the manufacture, sale and delivery of Products and the performance of Supplier’s obligations under this Agreement comply with all applicable laws, regulations, ordinances, orders and rulings (collectively “Laws”). Supplier shall not cause Proclaim to be in violation of any of the Laws of the countries in which Proclaim conducts business. Supplier agrees to assist Proclaim as necessary to ensure that Proclaim can import and export the Products in accordance with all applicable Laws. Supplier understands that the specifications, as well as any requirements documents, drawings, materials or technology provided by Proclaim to Supplier (the “Proclaim Technology”) may be subject to Laws relating to export control. Supplier agrees it will not provide the Proclaim Technology to foreign nationals or otherwise export or use the Proclaim Technology in violation of any applicable import or export laws or regulations. Supplier agrees to pay for any costs, including Customs back duty/VAT costs, penalty cost, transportation costs and repacking costs, inspection and quarantine costs incurred as a result of Supplier’s failure to comply with the Laws of the destination countries.

   Anticorruption Measures. Supplier hereby represents and warrants (a) in performing work under this Agreement, Supplier, its affiliates and their respective agents have not and will not pay, offer or promise to pay, or authorize the payment, directly or indirectly, of any monies or anything of value to any government official, government employee, political party or candidate for political office for the purpose of influencing any act or decision of such person or of the government to obtain or retain business, or direct business to any person; and (b) Supplier, its affiliates and their respective agents have not and will not pay, offer or promise to pay, or authorize the payment, directly or indirectly, of any monies or anything of value to any employee of Proclaim or its affiliates to obtain or retain business.

   Social Responsibility. Supplier agrees to comply with the Responsible Business Alliance Code of Conduct (“RBA Code”). As of the date of the Order, the RBA Code can be found at https://www.responsiblebusiness.org/code-of-conduct/. Supplier agrees that it will comply with any modifications to the RBA Code. Supplier represents and warrants that it has reviewed and understands all requirements of the RBA Code, and agrees that it is responsible for reviewing any modifications on an ongoing basis and for understanding those modifications. Any exemption to the RBA Code which Supplier wishes to utilize must be approved in writing by a duly authorized representative of Proclaim.

   Breach. In the event of any breach of any obligation or representation set forth in this Section 5, without limiting any other rights or remedies that may be available to Proclaim, Proclaim may terminate this Agreement immediately upon notice to Supplier. Further, Proclaim’s obligations to pay Supplier with regard to any transaction for which a breach of such obligations or representations has occurred shall be rendered automatically terminated and cancelled, and all payments previously paid shall be forthwith refunded to Proclaim by Supplier.

6. AUDIT

   Proclaim has the right to conduct audits and inspections with respect to the manufacture, sale and delivery of Products and Supplier’s activities under this Agreement in order to verify compliance with the terms and conditions of this Agreement. At Proclaim’s option, Proclaim may conduct an audit or inspection itself or select an independent third party to conduct the audit on Proclaim’s behalf. If Proclaim selects an independent third party to conduct the audit or inspection, Supplier may require that such independent third party execute a confidentiality agreement reasonably acceptable to Supplier. Supplier shall, and shall cause its affiliates, suppliers, employees and agents, to cooperate fully, at no additional charge to Proclaim, in any audit or inspection conducted by or on behalf of Proclaim. If any such audit or inspection reveals that Proclaim has overpaid any amount owed to Supplier, Supplier shall promptly pay to Proclaim such overpaid amount with interest thereon. The audit or inspection will be conducted at Proclaim’s expense, unless the audit or inspection reveals that Proclaim or its affiliates has overpaid the amounts owed to Supplier by five percent (5%) or more in any quarter, or the audit or inspection uncovers a breach of any other material obligation of Supplier under this Agreement; in which case Supplier will reimburse Proclaim for all reasonable costs and expenses incurred by Proclaim in connection with such audit or inspection. Supplier shall immediately take all necessary or desirable corrective and preventive actions to resolve any issues discovered by any audit or inspection conducted by or on behalf of Proclaim.

7. INSURANCE.

   Coverage. Supplier will obtain and maintain the following insurance coverage:

   1. “Commercial General Liability” insurance, including products/completed operations, broad form property damage, contractors protective liability, and broad form blanket contractual, advertising, and personal injury liability, with limits of not less than $5,000,000 per occurrence and $5,000,000 general aggregate;
   2. “Business Automobile Liability” insurance (including coverage for all owned, non-owned and hired autos, and no fault coverage where applicable) with limits of not less than $1,000,000 per occurrence for bodily injury and property damage combined, unless Supplier only uses private passenger automobiles on the premises of Proclaim or its customer, in which case not less than $500,000 per occurrence is acceptable; and
   3. “Workers’ Compensation” insurance, including coverage for all costs, benefits, and liabilities under workers’ compensation and similar Laws that may accrue in favor of any person employed by Supplier, in all states where Supplier provides Products, and “Employer’s Liability” insurance with limits of liability of not less than $1,000,000.

   Policies. Supplier will purchase the insurance required above from companies having a rating of A/VII or better in the current Best’s Insurance Reports published by A. M. Best Company, Inc. Supplier will cause each insurance policy to provide that it will remain in effect and that the coverage limits will not be reduced below the minimum amounts required by this Agreement or cancelled without at least thirty (30) days prior written notice from the insurance carrier to Proclaim. Supplier will cause Proclaim, and their respective officers, directors, employees, successors, assigns and agents of Proclaim to be named as additional insureds on the Commercial General Liability and Business Automobile Liability policies, with the standard separation of insureds provision or an endorsement for cross-liability coverage. Supplier will cause each of its policies of insurance to waive of any right of subrogation on the part of the insurer against Proclaim, its officers, directors, employees, agents, and contractors (to the extent permitted by Law). The insurance maintained by Supplier pursuant to this Agreement will be primary to, and without any right of contribution from, any other insurance that may be available to Proclaim. Supplier will submit certificates of insurance for the coverages required by above to Proclaim within ten (10) days of the date of the Order and at each insurance policy renewal thereafter. The existence of Supplier’s insurance policies, or Proclaim’s approval thereof, does not relieve or limit any of Supplier’s other obligations under this Agreement.

8. INDEMNIFICATION.

   By Supplier. Supplier will indemnify, defend and hold harmless Proclaim, its affiliates, and their respective officers, directors, employees, successors, assigns, and agents (collectively, “Indemnified Parties”) from and against any and all claims, actions, losses, expenses (including legal expenses), damages, fines, penalties, settlements or other liabilities arising out of or in connection with (a) any breach by Supplier, its affiliates, subcontractors, or agents of any of Supplier’s warranties, representations, and obligations in this Agreement; (b) any negligent acts or omissions or willful misconduct of Supplier or its personnel; (c) any infringement or misappropriation of any Proprietary Right by any Product or resulting from Proclaim’s use of any Product; or (d) any actual, alleged or threatened third party claims relating to any personal or bodily injury (including death) or damage to property caused by any Product (individually, a “Claim”, and collectively, the “Claims”).

   Process. Proclaim will give Supplier reasonable notice of each Claim for which it wants indemnity; provided that failure to provide such notice will not release Supplier from any obligations hereunder except to the extent that Supplier’s defense against a Claim brought by a third party is materially prejudiced by such failure. Proclaim will also give Supplier its reasonable cooperation in the defense of each Claim brought by a third party, at Supplier’s expense. Supplier will use counsel reasonably satisfactory to Proclaim to defend each such Claim. An Indemnified Party may participate in the defense at its own expense. If at any time Proclaim reasonably determines that Supplier’s defense of any Claim might adversely affect any Indemnified Party, then without limiting Supplier’s indemnification obligations, Proclaim may take control of the defense of the Claim, and in such event Proclaim and its counsel will proceed diligently and in good faith with that defense. Supplier shall have no authority to settle any Claim on behalf of any Indemnified Party, unless such settlement includes an unconditional and complete release of all of the Indemnified Parties’ alleged liabilities therein.

   Duty to Correct. Without limiting Supplier’s obligations under this Section, if any of the Products is held, or Proclaim determines that such Product could be held, to constitute an infringement or misappropriation of any Proprietary Right, or the use of such Product is enjoined or is threatened to be enjoined, Supplier will promptly, at no cost to Proclaim and at Proclaim’s election, either (a) procure for Proclaim the right to continue to use such Product as contemplated by this Agreement, or (b) replace or modify such Product such that the replacement or modified Product is non-infringing and non-misappropriating, provided that such replacement or modification must provide equivalent performance and meet Supplier’s warranties under this Agreement. If Supplier is unable to successfully accomplish either (a) or (b) above after using its best efforts, Supplier will refund to Proclaim all amounts paid by Proclaim under this Agreement in connection with the affected Product.

9. CONFIDENTIALITY; PUBLICITY.

   Confidentiality. The parties will comply with the terms of any nondisclosure agreement between Supplier and Proclaim (“NDA”). If no such agreement exists, Supplier and its representatives (a) will protect and keep confidential the existence of this Agreement (including the Order), its terms and conditions and any other information obtained from Proclaim in connection with this Agreement or related to the Products that is identified as confidential or proprietary or that, given the nature of such information or the manner of its disclosure, reasonably should be considered confidential or proprietary (including all information relating to Proclaim’s technology, customers, business plans, marketing activities, and finances), (b) will use such information only for the purpose(s) for which it was originally disclosed and in any case only for the purpose of fulfilling its obligations under this Agreement, and (c) will return all such information to Proclaim promptly upon the termination of this Agreement. All such information will remain Proclaim’s exclusive property, and Supplier will have no rights to use such information except as expressly provided herein.

   Use of Proclaim Name is Prohibited. The existence and terms of this Agreement are Confidential Information of Proclaim. Accordingly, Customer may not use Proclaim’s name or identity or any other Confidential Information in any advertising, promotion or other public announcement without the prior express written consent of Proclaim.

10. TERMINATION.

    Termination for Convenience. Proclaim may terminate or modify the Order prior to shipment of the Products at no charge and without liability. Proclaim may terminate or modify the Order for any Product after shipment and prior to Proclaim’s acceptance of such Product at no charge and without liability, provided that Proclaim will pay the shipping expenses for returning such Product to Supplier’s shipping location.

    Termination for Cause. Proclaim may cancel the Order and/or terminate the Agreement in its entirety for Supplier’s material breach if Supplier fails to cure such breach within ten (10) days after receipt of written notice to Supplier specifying the breach in reasonable detail. Supplier may cancel an Order for Proclaim’s nonpayment under such Order if Proclaim fails to cure such nonpayment within thirty (30) days after receipt of written notice to Proclaim specifying the breach in reasonable detail.

    Effects of Termination. Upon receipt or delivery (as applicable) of a termination notice under this Section 10, Supplier shall: (a) deliver, assign and otherwise transfer, in the manner contemplated by this Agreement all Products that, if the obligations under the Order had been completed, would have been furnished to Proclaim, including title thereto; and (b) return all confidential or proprietary information to Proclaim. The following provisions of this Agreement will survive any termination or expiration of this Agreement: Sections 1.3 (License), 3.3 (Taxes), 3.5 (Setoff), 4 (Representations and Warranties), 6 (Audits), 8 (Indemnification), 9 (Confidentiality; Publicity), 10.3 (Effects of Termination), and 11 (Additional Provisions).

11. ADDITIONAL PROVISIONS

    Entire Agreement; Conflicts. This Agreement (together with any NDA) constitutes the entire agreement between the parties with respect to the transactions contemplated hereby and supersedes all prior agreements and understandings between the parties relating to such transactions. In the event that any conflict exists between the terms and conditions of this Agreement and any other terms and conditions in an Order, then the terms and conditions of this Agreement will control; provided, however, if an Order references or incorporates a proposal from Proclaim, such proposal shall control over the terms and conditions of this Agreement solely with respect to the subject matter set forth in such proposal.

    Severability. If the scope of any of the provisions (or any portion of a provision) of this Agreement is too broad to permit enforcement to its full extent, then such provisions shall be enforced to the maximum extent permitted by law, and the parties agree that such scope may be judicially modified accordingly and that the whole of such provisions of this Agreement shall not thereby fail, but that the scope of such provisions shall be curtailed only to the extent necessary to conform to the law.

    Amendments; Waiver. This Agreement may be amended only by written consent of both parties. The failure by either party to enforce any provision of this Agreement shall not constitute a waiver of future enforcement of that or any other provision.

    Independent Contractor. Neither party shall, for any purpose, be deemed to be an agent of the other party, and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any

    Successors, Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns and legal representatives. Neither party shall have the right to assign, subcontract or otherwise transfer its rights or obligations under this Agreement except with the prior written consent of the other party, not to be unreasonably withheld. Notwithstanding the foregoing, Proclaim may subcontract, delegate or assign some or all of its rights and obligations under this Agreement to an affiliate of Proclaim.

    Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed received (a) when delivered personally; (b) when sent by confirmed facsimile; (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (d) when acknowledged as received via email; or (e) one day after deposit with a commercial overnight carrier. All communications shall be sent to the addresses set forth above or to such other address as may be designated by a party by giving written notice to the other party pursuant to this section.

    Governing Law. This Agreement shall be governed and construed in all respects in accordance with the domestic laws and regulations of the State of California, without regard to its conflicts of laws provisions. The parties further acknowledge and confirm that the selection of the governing law is a material term of this Agreement.

    Dispute Resolution. Except as otherwise provided in this Agreement, the following binding dispute resolution procedures shall be the exclusive means used by the parties to resolve all disputes, differences, controversies and claims arising out of or relating to the Agreement or any other aspect of the relationship between Proclaim and Supplier or their respective affiliates and subsidiaries (collectively, “Disputes”). Any and all Disputes shall be referred to arbitration under the rules and procedures of JAMS (“Administrator”), who shall act as the arbitration administrator. The parties shall agree on a single arbitrator (the “Arbitrator”). The Arbitrator shall be a retired judge selected by the parties from a roster of arbitrators provided by the Administrator. Unless otherwise mutually agreed to by the parties, the place of arbitration shall be San Jose, California. The Federal Arbitration Act shall govern the arbitrability of all Disputes. The Federal Rules of Civil Procedure and the Federal Rules of Evidence (the “Federal Rules”), to the extent not inconsistent with this Agreement, govern the conduct of the arbitration. The parties may engage in discovery, the extent of which shall be agreed upon by the parties or determined by the Arbitrator if the parties cannot agree. Any judicial proceeding arising out of or relating to this Agreement or the relationship of the parties to review or confirm the award shall be brought exclusively in a court of competent jurisdiction in the county of San Jose, California. Each party shall pay their own expenses in connection with the resolution of Disputes pursuant to this section, including attorneys’ fees. In the event of any lawsuit between the parties arising out of or related to this Agreement, the parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury.

    Exclusion of Certain Damages. PROCLAIM WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, EVEN IF IT HAS NOTICE OF THAT THOSE KINDS OF DAMAGES MAY OCCUR.