These Terms & Conditions apply to the sales of CoolSystems, Inc.’s (“Seller”) Rapid Recovery Help® control units and all peripheral equipment and supplies (the “Products”) ordered by Buyer.

1. DELIVERABLES. Seller agrees to provide to Buyer (“Buyer”) the services (“Services”) and/or Products (“Products”), described in any purchase order, in accordance with these Terms & Conditions (“Agreement”). Upon acceptance of a purchase order, shipment of Products or commencement of a Service, Buyer and Seller shall be bound by the provisions of this Agreement, unless Buyer objects to such terms in writing prior to submission of the order for Products or Services.
2. DELIVERY. All Products delivered pursuant to this Agreement shall be suitably packed for shipment in Seller’s standard shipping cartons, marked for shipment, and delivered to the carrier for shipment to Buyer, or by prior agreement, to Buyer’s Customers (FOB origin), at which time title to the Products and risk of loss and damage shall pass to Buyer and such Products shall be deemed delivered hereunder. Unless otherwise instructed in writing by Buyer, Seller shall select the carrier. All freight, insurance and other shipping expenses, as well as any special packing expense, shall be paid by Buyer. Buyer shall also bear all applicable taxes, duties and similar charges that may be assessed against the Products after delivery to the carrier at Seller’s facilities. Notwithstanding the passage of title under this Section 2, Seller retains and Buyer grants a purchase-money security interest in each of the Products, and in any proceeds from Buyer’s resale (if any – see Section 4, below) of the Products, until the full invoice amount for such Product has been paid in full to Seller.
3. PAYMENT. As full consideration for the performance of the Services, delivery of the Products and the assignment of rights to Buyer as provided herein, Buyer shall pay Seller (i) the amount agreed upon and specified in the applicable purchase order, or (ii) Seller’s quoted price on date of shipment (for Products), or the date Services were started (for Services), whichever is lower. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts, and government imposed surcharges will be stated separately on Seller’s invoice. Payment is made when Buyer’s check is received. Seller shall invoice Buyer for all Products delivered and all Services actually performed. Terms are net 30 days from date of invoice. A monthly service charge of 1.5% will be added to all past due balances.
4. NO RESALE, NO EXPORT, NO ALTERATION. Absent a prior written agreement with Seller, Buyer agrees that it is neither authorized nor permitted to resell the Products to any third-party customers including, but not limited to, end-user patients, sub-distributors, DME providers, or health care providers. Buyer further agrees that it shall not export any Products to Customers outside the borders of the United States for any purpose whatsoever. Buyer shall not make any modifications or alterations to the Rapid Recovery Help System or reverse engineer, decompile, or disassemble any Rapid Recovery Help System or encourage or assist any third party in doing so.
5. WARRANTIES.
6. ACCEPTANCE, SUSPENSION, AND CANCELLATION. No Orders are binding upon Seller unless accepted by Seller in writing, which acceptance Seller may grant or withhold in its discretion. Once accepted by Seller, Buyer may cancel or reschedule Orders for Products only with Seller’s prior written approval. In addition, Seller may suspend or cancel any Order previously accepted in writing if Seller determines, in its sole discretion, that the Order is unlikely to be paid for in accordance with the terms and conditions set forth in this Agreement and the Order. Upon a determination that Seller intends to suspend or cancel a previously accepted Order, Seller shall give Buyer prompt written notice of the suspension or cancellation and Seller shall be under no further obligation to deliver Products under that Order.
7. INSPECTION AND REJECTION. Should Customer return to Buyer any Products within five (5) days of delivery to Customer, Buyer shall visually inspect the packaging of all Products delivered hereunder promptly upon receipt, and subject to Buyer’s assumption of risk of loss and damage during shipment under Section 2 may reject any Products that are visibly damaged by written notice to Seller. If Buyer does not reject a shipment of Products within five (5) days of receipt, such shipment shall be deemed to have been accepted and the sale deemed final. Rejected Products should be returned freight prepaid to Seller within ten (10) days of rejection but only after receipt from Seller of a Return Materials Authorization (“RMA”), which Buyer may obtain from Seller by mail, e-mail, or telefax upon proper explanation of the rejection. As promptly as practicable upon verification of any claim of damage, but not later than sixty (60) days after receipt by Seller of properly rejected Products, Seller shall, at its option and expense, either repair or replace such Products. The Party shipping Products pursuant to this Section 7 shall bear the entire risk of loss for Products during shipment. Any insurance proceeds payable in respect to any loss for such Products to the extent of any loss incurred during shipment shall be paid to the Party bearing the risk of loss for such Products to the extent of the loss incurred. Seller shall prepay transportation charges back to Buyer and shall reimburse Buyer for any costs of transportation incurred by Buyer in connection with the return to Seller of properly rejected Products. In the case of improperly rejected or returned Products, Buyer shall pay transportation charges in both directions. Except as provided in this Section 7, all Products delivered under this Agreement are non-returnable. The foregoing provisions of this Section 7 state Buyer’s sole remedy and Seller’s sole obligation with respect to such damaged Products.
8. INDEPENDENT CONTRACTOR. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint venture or common undertaking, or (iii) allow Buyer to create or assume any obligation on behalf of Seller for any purpose whatsoever. All financial and other obligations associated with Buyer’s business are the sole responsibility of Buyer. Buyer shall be solely responsible for, and shall indemnify and hold Seller free and harmless from, any and all claims, damages or lawsuits (including Seller’s attorneys’ fees) arising out of the acts of Buyer, its employees or its agents.
9. TERMINATION. Seller may terminate this Agreement upon written notice to Buyer if Buyer fails to pay Seller within sixty (60) days after Seller notifies Buyer in writing that payment is past due.
   Upon the expiration or termination of this Agreement for any reason each party will be released from all obligations to the other arising after the date of expiration or termination, except for those which by their terms survive such termination or expiration.
10. FORCE MAJEURE. Neither party shall be liable to the other for any failure to perform caused by circumstances beyond its control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment, or transportation.
11. ATTORNEYS’ FEES and COLLECTION AGENCY FEES. In any action to enforce this Agreement, the prevailing party shall be entitled to recover all court costs and expenses and reasonable attorneys’ fees, in addition to any other relief to which it may be entitled. In the event an invoice is past due and is sent to a collection agency, Buyer shall also be responsible for the collection costs incurred by Rapid Recovery Help.
12. SEVERABILITY. If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
13. ASSIGNMENT; WAIVER. Buyer may not assign this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of Seller. Any assignment or transfer without such written consent shall be null and void. A waiver of any defaults hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
14. NOTICES. Except for Purchase Orders which may be sent by local mail, facsimile transmission, or electronically transmitted, all notices, and other communications hereunder shall be in writing, and shall be addressed to Seller or to an authorized Buyer representative, and shall be considered given when (a) delivered personally, (b) sent by confirmed telex or facsimile, or email, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.
15. SURVIVAL OF OBLIGATIONS. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
16. GOVERNING LAW. This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of California, excluding its conflict of law rules. Jurisdiction and venue over all controversies arising out of, or relating to, this Agreement shall be in the County of Contra Costa, State of California or the U.S. District Court for the Northern District of California and Buyer and Seller submit to the jurisdiction of said courts and waive any defense of lack of personal jurisdiction or inconvenient forum to the maintenance of any action or proceeding so brought.
17. ENTIRE AGREEMENT; MODIFICATION. This Agreement is the complete, final, and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. This Agreement may not be varied, modified, altered, or amended except in writing, signed by the parties. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Buyer, including its purchase orders. Notwithstanding the foregoing, this Agreement will not supersede or take the place of any written agreement which is signed by both parties and covers the same subject matter as this Agreement or its related purchase orders.
18. INJUNCTIVE RELIEF. Buyer acknowledges and agrees that the obligations and promises of Buyer under this Agreement are of a unique, intellectual nature giving them particular value. Buyer’s breach of any of the promises contained in this Agreement will result in irreparable and continuing damage to Seller for which there will be no adequate remedy at law and, in the event of such breach, Buyer agrees that Seller will be entitled to seek injunctive relief, or a decree of specific performance.

CAUTIONS & WARNINGS

The Rapid Recovery Help GRPRO® 2.1 and Med4 Elite™ control units are FDA-regulated prescription medical devices and should only be obtained from authorized sellers.

Federal law restricts these devices to sale by or on the order of a licensed healthcare practitioner.

The purchase of a Rapid Recovery Help System from a third-party seller, such as a public auction website or private, unauthorized individual, should be approached with caution. The Rapid Recovery Help GRPRO® 2.1 and Med4 Elite™ control units are prescription devices whose use is regulated by U.S. Food and Drug Administration and state and local regulatory agencies.

Sellers are required to sell such devices only to individuals qualified to purchase prescription devices (e.g., health care professionals). While sellers are also required to confirm the condition of such devices, there is no way to verify the condition of devices purchased from third-party sellers, therefore the warranty for devices purchased from unauthorized Rapid Recovery Help distributors cannot be honored and will be void.