This Terms and Conditions (“T&C”) and, if applicable, the Purchase and Supply Agreement between the parties (collectively where applicable with this T&C, these “Sales Terms”), and with any other terms and/or schedules referenced on such other document (collectively with the Sales Terms, the “Agreement”), shall govern all transactions between the purchaser (“Purchaser”) and Kaneka Pharma America LLC (“KPA”).

1. Each order is expressly conditioned upon Purchaser’s acceptance of the Agreement (including all of the terms and conditions) in its entirety without any additions, modifications or exceptions. KPA reserves the unconditional right to reject any order, in whole or in part, and KPA will not be liable to Purchaser for failure or refusal to accept any order. Purchaser shall always seek the advice of physicians or other qualified health provider with any questions regarding a medical condition or use of medical device. Any order submitted by Purchaser which varies from the Agreement shall be deemed null and void in respect of the variance, and the terms and conditions of the Agreement shall govern and prevail with respect to such order. Without limiting the foregoing, any terms, conditions, quotations or proposals submitted by Purchaser (by separate acknowledgment or otherwise) inconsistent with or in addition to the terms and conditions contained in the Agreement are objected to, deemed null and void, and are hereby rejected without need of any further or additional notice of rejection, and KPA’s silence or failure to respond to any such term, condition, quotation or proposal submitted by Purchaser will not be deemed to be an acceptance or approval thereof or a waiver of KPA’s rights under the Agreement. KPA does not accept, expressly or impliedly, and KPA hereby rejects, any additional or different terms or conditions that the Purchaser presents either before or after the date hereof, including, but not limited to, any terms or conditions contained or referenced in any order, purchase order, acceptance, acknowledgment, or other document, or established by trade usage or prior course of dealing, unless KPA expressly and unambiguously agrees to such terms and conditions in a writing duly signed by an authorized KPA representative. By ordering, receiving, accepting or using KPA products (“Products”) or otherwise proceeding with any transaction after the date hereof or after otherwise being notified that such transactions are subject to the Agreement, Purchaser hereby agrees to the terms and conditions of the Agreement including this form of T&C. KPA reserves the right in its sole discretion to modify or update this T&C at any time. Such modifications and updates shall be effective immediately upon posting of the updated T&C on KPA’s website. For this reason, KPA encourages Purchaser to review the most recent T&C on KPA’s website whenever purchasing products from KPA. In the event of any conflict between these Sales Terms and any specific, invoice, warranty statement, order, purchase order or other document, the terms and conditions of these Sales Terms shall govern and prevail. In the event that there is any ambiguity or conflict regarding the terms and conditions of prior orders between the parties, these Sales Terms shall govern and control. In the event of any conflict between this T&C and any applicable Purchase and Supply Agreement between KPA and Purchaser, the terms of the Purchase and Supply Agreement shall supersede those conflicting terms.

2. Payment terms and product prices are as stated on the front of each invoice. Except as otherwise set forth in a written agreement by Purchaser and KPA: (a) Purchaser shall be responsible for freight and insurance; (b) prices do not include sales, use, VAT, excise or other taxes, or any customs duties or levies, all of which shall be borne by the Purchaser; (c) all orders are subject to acceptance by KPA; and (d) risk of loss of or damage to goods shall pass to the Purchaser upon delivery of such goods by KPA to the agreed upon delivery address. All orders are subject to credit approval, or receipt of payment. Until KPA has received full payment for all Products supplied to Purchaser, KPA shall retain title (or, where such reservation is invalid, a purchase money security interest) in all Products delivered to Purchaser and acquire title to any resale proceeds to the extent legally permissible under applicable law.

3. KPA expressly warrants that the Products shall (a) conform to Kaneka’s specifications, and (b) comply with all applicable requirements, codes, regulations, and laws, including but not limited to the Federal Food, Drug and Cosmetic Act. IN NO EVENT SHALL KPA BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON PURCHASER’S CLAIMS OR THOSE OF ITS CUSTOMERS, ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES, LOST PROFITS AND/OR LIABILITIES ARISING FROM OR RELATING TO THE INTEGRATION OR COMBINATION OF THE PRODUCTS INTO FINISHED PRODUCTS. IN NO EVENT SHALL THE AGGREGATE LIABILITY THAT KPA MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY PURCHASER, AS APPLICABLE, FOR THE PRODUCTS THAT DIRECTLY CAUSED THE DAMAGES. THE REMEDIES AND LIMITATIONS CONTAINED IN THE AGREEMENT SHALL BE THE SOLE AND EXCLUSIVE REMEDIES OF THE PURCHASER. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, KPA MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, RELATING TO THE PRODUCT AND/OR THE INTEGRATION OR COMBINATION OF THE PRODUCT WITH OR INTO A FINISHED PRODUCT, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR MEDICINE. WITHOUT LIMITING THE FOREGOING, SPECIFICALLY EXCLUDED AND DISCLAIMED ARE THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND THE IMPLIED WARRANTY OF MERCHANTABILITY. Performance is excused and no liability shall result from any delay in performance or nonperformance, caused by circumstances beyond the control of the party affected, including but not limited to, war or hostilities, Acts of God, accident, fire, or explosion.

4. Purchaser shall promptly, and in any event prior to use, inspect the Product shipment for any damage to packaging, shortage or non-conformance (including without limitation, with KPA specifications) to this Agreement. Within seven (7) days after Purchaser learns, or should reasonably have learned, of any claim with respect to Products, Purchaser shall inform KPA in writing of the claim supported with photos of such damage, shortage, or non-conformance, or the claim is waived. KPA’s liability arising out of any Purchase and Supply Agreement and/or sales of the Products shall be limited to, at Purchaser’s option, the replacement of or repayment of the purchase price for the Products which are the subject of any proven claim. In the event such proven claim is for damage or non-conformance, Purchaser shall promptly return to KPA the Products that are the subject of such claim.

5. Purchaser shall operate and maintain the Products using employees with adequate training and with due care pursuant to and in accordance with documents provided by KPA in relation to use of Products, including but not limited to the Indication for Use and Operator’s Manual (collectively, “Instructions”). The warranties provided herein by KPA shall apply only if the Purchaser’s use of Products was in accordance with all applicable Instructions, and use must have occurred on or before the expiration date of such Products (as marked on the packaging). Purchaser is liable for and shall indemnify, defend, and hold harmless KPA from and against all liability for any and all loss, cost, expense, damage, claims or demands for injuries to any personnel including Purchaser’s patient and employees, or for loss or damage to any property including Purchaser’s property and property of Purchaser’s patient, arising out of, resulting from, or occurring in connection with (i) Purchaser’s failure to use Products in accordance with Instructions; or (ii) Purchaser’s negligence, willful misconduct, or breach of this Agreement. KPA will not accept charge backs or offsets for handling, administration fees, service fees or penalties of any kind without its prior written consent.

6. Unless KPA provides prior written consent, Purchaser may not use in any manner trade names, trademarks, copyrights, logos, markings, artwork, names and/or logos owned by KPA or that KPA has the right to use. Except for bills to patients or their insurance providers for medical treatments, Purchaser agrees that it will NOT resell, directly or indirectly, or allow any third party to resell (directly or indirectly), any bulk Kaneka Products at any price for any reason.

7. This Agreement contains the entire understanding between the parties with regard to the matters set forth herein. There are no representations, warranties, agreements, arrangements, undertakings, oral or written, between or among the parties hereto relating to the subject matter of this Agreement not fully expressed herein. The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of New York, without regard to conflicts of law principles that would require application of any other law. The parties shall resolve all disputes arising out of or related to this Agreement, or to the interpretation, performance, breach or termination hereof, exclusively in the state or Federal courts located in New York, New York. In any such litigation the prevailing party, as determined by the court, shall be entitled to recover reasonable attorneys’ fees and costs. The parties submit to the exclusive jurisdiction of any state or Federal court located in New York, New York for purposes of such dispute resolution, and the parties waive any objection to the venue or personal jurisdiction of said courts.