PURCHASING TERMS AND CONDITIONS
MKT-700004 Rev A

ACCEPTANCE – of this order must be without qualification.  Nalu Medical, Inc.  (hereinafter referred to as “Purchaser”) shall not be bound by any terms and conditions not appearing hereon and shipment by Seller of the material ordered shall constitute a waiver by Seller of all terms and conditions contained in any acceptance form of any other communications which are inconsistent with the terms and conditions set forth on this order unless specifically agreed to in writing by Purchaser.

PRICE – If no price is stated on this order, material must not be furnished at a price higher than last paid Seller by Purchaser for comparable material without prior notice and written acceptance by Purchaser of such increased price.  Seller further represents to the best of its knowledge, information, and belief that the prices charged for items covered by this order are not in excess of or less than prices permitted by any applicable Federal, State and Local law or regulation.  Seller agrees to refund any amount paid by Purchaser in excess of lawful amounts.

CHANGES – No changes in or additions to this order or the terms thereof shall be binding upon Purchaser unless approved by Purchaser in writing.

PACKING – Seller shall be responsible for safe packing, which must conform to the requirements of carrier’s tariffs.  Seller shall separately number all cases, packages etc., showing the corresponding numbers on the invoices.  All itemized packing slips, bearing the Purchase Order number, must be placed in each container.

RISK OF LOSS AND INSPECTIONS – Risk of loss or damage to the articles shall be on Seller until said articles have been delivered to and accepted by Purchaser, notwithstanding any other terms contained herein.  Materials delivered under this order shall be subject to inspection and test by Purchaser.  All or any part of the materials delivered under this order may be held for or returned to Seller at his expense for storage, transportation and insurance if found within a reasonable time from the date of their opening to be defective or not in accordance with the order, including specifications provided therein and/or Seller’s express or implied warranties or representations.  Acceptance of all or part of the goods, use thereof and/or payment therefore or failure to notify Seller promptly shall not waive or affect Purchaser’s right to cancel or return all or part of the goods, or to recover damages, or to recover upon Seller’s warranties or agreements of indemnity.

SHIPPING INSTRUCTIONS – All goods must be shipped in accordance with shipping instructions stated on the face hereof or otherwise specified by Purchaser and, where freight is to be paid by Purchaser, at the most advantageous rate.  Freight charges shall be paid by Seller unless Purchaser’s order specifies otherwise.  Shipping quantities exceeding 5% of the purchase order quantity must be approved by Purchaser prior to shipment or are subject to return at Sellers expense.  Purchaser must be notified in writing of any order shortages not being fulfilled by seller.  No extra expense sustained due to failure to comply with these instructions shall be the Purchaser’s responsibility.

INVOICES – Invoices shall (a) be rendered for each delivery in duplicate with a bill of lading attached; (b) postmarked on the date appearing on the invoice; (c ) cover no more than one order; (d) be rendered with order number indicated thereon.

DELIVERY: NOTICE OF LABOR DISPUTES – Time is and shall remain of the essence in this order; and no acts of Purchaser, including without limitation, modification of this order or acceptance of late deliveries shall constitute waiver of this provision.  Purchaser reserves the right to refuse or return at Seller’s risk and expense shipments made in excess of Purchaser’s orders or in advance of required schedules, or to defer payment of advanced deliveries until scheduled delivery dates.  Seller shall notify Purchaser immediately of any actual or potential labor dispute which is delaying or threatens to delay the time and performance of this order.

ASSIGNMENT OR ADVERTISING – Seller shall not, without first obtaining written consent of the Purchaser, in any manner, assign or subcontract all or any part of this purchase order, or advertise or publish (including denial or confirmation thereof) the fact that Seller has contracted to furnish to Purchaser the materials herein ordered.

WARRANTY – In accepting this order, Seller warrants that the articles to be shipped herein are free from defects in materials, workmanship and fabrication and that all merchandise delivered shall be of quality, quantity, size, description and dimension specified and strictly in accordance with Purchaser’s specifications, drawings and approved samples, if any, and suitable for the purpose(s) designated.  In addition, SELLER WARRANTS TO PURHCASER THAT ALL PRODUCTS DELIVERED UNDER THIS ORDER SHALL BE OF MERCHANTABLE QUALITY, FREE FROM ANY LATENT OR PATENT DEFECTS IN DESIGN, MATERIAL OR WORKMANSHIP, SHALL CONFORM TO PURCHASER’S SPECIFICATIONS OR SAMPLES, SHALL BE SAFE FOR THEIR INTENDED USE, AND FIT FOR THEIR INTENDED PURPOSE, and Seller hereby agrees to indemnify Purchaser for any third party claims arising from Seller’s violation of the foregoing warranty. These warranties shall survive acceptance and payment and shall run to Purchaser, his successors, assigns, customers, and the users of its products and shall be deemed to be exclusive.

INDEPENDENT CONTRACTORS – The Seller shall perform hereunder as an independent contractor and not as an employee or agent of the Purchaser.

CHANGES-SPECIFICATIONS – Purchaser shall have the right by written order, without notice, to make changes from time to time in the work to be performed on the materials to be furnished by Seller hereunder.  If such changes cause an increase or decrease in the amount due under this order or in the time required for its performance, an equitable adjustment shall be made and the order shall be modified accordingly.  Any claim for adjustment must be asserted in writing within thirty (30) days from the date the change is ordered.  Nothing contained in this clause shall relieve Seller from proceeding without delay in the performance of the order as changed. Suppliers shall not make specification or process changes without advanced authorization by Nalu Medical, Inc. Supplier agrees that this authorization is required for specification or process changes occurring since the Supplier’s last shipment.

CONTINGENCIES – Neither party hereto shall be liable to the other for default or delay in delivering or accepting goods hereunder if, such default or delay is caused by fire, strike, riot, act of God, delay of carriers, governmental order or regulation, complete or partial shutdown of plant by reason of inability to obtain sufficient raw materials or power and/or any other similar or different contingencies beyond the reasonable control of the respective parties.

DEFAULT-BANKRUPTCY-CANCELLATION – Purchaser may cancel this order in whole or in part at any time by written or telegraphic notice whenever Seller shall default in performance or shall so fail to make progress in the work as to endanger the performance, except that the Purchase Order shall not be terminated for such default where the default is due to cause beyond the cause of Seller and without its default or negligence, in the event of any proceedings, voluntary or involuntary, in bankruptcy or solvency, by or against Seller including any proceeding under the Chandler Act, or in the event of the appointment with or without the Seller’s consent of an assignee for the benefit of creditors or of a receiver, then Purchaser may, at its option, cancel this order for default and hold Seller accountable for any additional damages incurred by Purchaser.

TOOLS AND MATERIALS – In consideration of Purchaser entering into this order, title to all designs, sketches, drawings, programs, blueprints, patterns, dies, models, molds, tools, plates, cuts, special appliances, materials and all improvements thereto, furnished to Seller by Purchaser and/or created or developed by Seller for Purchaser in connection with or as a result of this order, shall belong to Purchaser.  They shall be at Seller’s risk and shall be replaced by Seller if lost, damaged or destroyed.  They shall be maintained in good condition at Seller’s expense and kept insured by Seller with loss payable to Purchaser.  Such facilities shall be used exclusively in the production for Purchaser of articles required by the order and shall not be used for production or larger quantities than those specified herein, or in the production, manufacture or design of any articles for any person without prior written consent of Purchaser.  Upon demand, they shall be returned to Purchaser, including any unused materials furnished by Purchaser and all spoiled or defective materials or products which contain any secret or patented devise unless Purchaser shall otherwise direct.

TAXES – Seller agrees to be responsible for any Federal, State or Local excise or gross receipts taxes, personal property taxes, customs duties or levies and any foreign taxes which may be imposed on articles, supplies or services ordered hereunder by reason of their sale, delivery to or subsequent payment by the Purchaser.  Seller represents that any Federal, State or Local (jurisdiction) sales/use taxes which are charged on the items ordered herein will be promptly remitted to the designated jurisdiction and that Seller is authorized and properly registered with the jurisdiction taxing authorities to collect and remit said taxes.  In the event that Seller has an obligation to collect said sales/use taxes, fails to do so and is subsequently assessed by a taxing authority or agency, Seller waives all rights to seek contribution for any interest or penalty charged.  Further, Seller shall not have the right to seek contribution for any sales/use taxes assessed on items sold to Purchaser to the extent that Purchaser has either previously self-assessed and paid said taxes itself or Purchaser’s Statute of Limitations with respect to the jurisdiction has expired.

CONFIDENTIAL RELATIONSHIP – Seller agrees to treat as strictly secret and confidential all specifications, programs, drawings, blueprints, nomenclature, samples, models and other information supplied to him by Purchaser.

TITLE – Title to material to be delivered hereunder shall not pass until the materials reach the receiving point indicated and are accepted.

CANCELLATION – Purchaser shall have the right upon notice to Seller to cancel this order or any unfilled portion thereto without any liability other than to make payment for that portion of the order which has been delivered and finally accepted.

DAMAGES – Purchaser’s liability for breach of this Agreement shall not exceed the difference between the resale price of any materials or work in process, sold in good faith and in a commercially reasonable manner and the contract price for such materials or work in process, less expenses and costs saved in consequence of Purchaser’s breach.  Purchaser shall not be liable for any indirect, incidental, special or consequential damages.  Seller’s remedies contained herein are not optional, but shall be Seller’s exclusive remedies.

WAIVER – No waiver of any of the provisions contained in this order shall be valid unless made in writing and executed by both parties.  No charges beyond the contract price herein specified will be allowed except with Purchaser’s written consent.  Failure of Purchaser to insist upon strict performance shall not constitute a waiver of any of the provisions of this order or waiver of any other default.

REGULATORY AGENCIES – Seller acknowledges that certain material(s) purchased hereunder may be incorporated into products which will be purchased by an agency or branch of the federal government.  In the event the federal government or our Notified Body requests an inspection by the FDA or Notified Body of the manufacturing facilities and records relative to the materials purchased hereunder, Seller hereby agrees that said inspection shall be permitted, and Seller shall immediately notify Purchaser when it learns such an inspection is scheduled or is occurring. If the Seller should receive a form FD-483 from the FDA or a major non-conformance following inspection from their registrar or Notified Body, the Purchaser will need to be notified within 30 days of the notice. Manufacturers are required to maintain records for a minimum of eighteen  years of record retention from the date of manufacture.  Manufacturers have the option of keeping records permanently or after five years from the date of manufacture they can surrender their records to Nalu Medical, Inc.

Nalu Medical, Inc. may, at reasonable intervals, audit the Seller’s quality program for conformance to the applicable requirements of the Quality System Regulation (QSR) and to the intent of  ISO 13485 or the Purchaser’s quality assurance specification for suppliers.

These TERMS AND CONDITIONS may not be superseded unless mutually agreed otherwise between Purchaser and the Seller in writing.