Crash Cart Auto-Replenishment Terms and Conditions

HealthFirst Crash Cart Auto-Replenishment Program Terms and Conditions

These Terms and Conditions (“Terms and Conditions”) are incorporated into and made a part of the HealthFirst Crash Cart Auto-Replenishment Membership Agreement (“Form Agreement”) to which these Terms and Conditions are attached (the Form Agreement and these Terms and Conditions collectively referred to the “Agreement”), which Agreement is effective as of the date set forth on the Form Agreement (the “Effective Date”) and is between the customer identified on the From (“Customer”) and HF Acquisition Co., LLC (“HealthFirst”) (each, a “Party” and collectively, the “Parties”). Capitalized terms not otherwise defined in these Terms and Conditions shall have the meaning set forth in the Form Agreement. The Parties agree as follows:

1. Subscription. Customer hereby enrolls in and subscribes to the HealthFirst Crash Cart Auto-Replenishment Membership Program described in the Agreement (“Program”) with respect to the Medications identified in the Medication List referenced in the Form Agreement (“Products”) and carried on the Customer Crash Cart(s) identified in the Form Agreement (“Customer Crash Carts”)

2. Term and Termination. The initial minimum twelve (12) month Program term is specified on the Form Agreement (“Initial Term”). This Agreement shall automatically renew for successive one (1) year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either Party terminates the Agreement by written notice provided to the other Party at least 60 days’ prior to the start of a Renewal Period. Either Party may terminate this Agreement upon the other Party’s material breach if the breaching Party fails to cure such breach within the thirty (30) day period following notice. Additionally, HEALTHFIRST may terminate this Agreement at any time if it has reason to believe that Customer may be unable to continue to pay the Membership Fee or believes the Program or any of its or HealthFirst’s activities hereunder may be inconsistent with applicable laws and/or regulations.

3. Membership Fees; Payment Terms.

a. The membership fee for the Program (“Membership Fee”) for the Initial Term is set forth on the Form Agreement. HEALTHFIRST reserves the right to change the Membership Fee pricing and billing methods applicable to any Renewal Term by providing notice to Customer at least thirty (30) days prior to the start of such applicable Renewal Period Date; provided, however, that HEALTHFIRST reserves the right to increase the Membership Fee at any time after the Initial Term upon thirty (30) days’ notice to Customer to reflect any increases in its costs for providing the Program to Customer.

b. Payments of the Membership Fee shall be made on an annual or quarterly basis as set forth in the Form Agreement. Except as set forth in this Agreement, Membership Fees are non-refundable and Customer agrees to pay the total amount of the annual Membership Fee for each 12 month period of the Initial Term and any Renewal Terms regardless of whether Customer continues to use the Program during any such 12 month period or discontinues such use at any time during any such 12 month period. Customer hereby authorizes HEALTHFIRST to charge Customer’s chosen payment method upon commencement of this Agreement, and again at the beginning of any subsequent Renewal Term. The Membership Fee does not include any applicable taxes, which shall be Customer’s responsibility. Late payments will be subject to interest at the lower of the 1.5% per month or the highest amount per month allowed by law.

4. OnTraq™ Software. As part of the Program and included in the Membership Fee is access to HealthFirst’s OnTraq™ software which is used to track and manage product inventory and fulfillment needs (“Software”). The terms and conditions of Customer’s use of the Software shall be subject to Customer’s acceptance of HealthFirst’s software terms and conditions (“Software Terms and Conditions”) with which Customer is required to accept prior to any use of the Software, such Software Terms and Conditions to be included in the definition of “Agreement” hereunder.

5. Ownership. HealthFirst (or their designees) own all intellectual and proprietary rights associated with Program and the Program Products and Services. As such, Customer may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit the Program or the Program Products and Services, including the Products and Software in whole or in part except as expressly authorized by Customer.

6. Warranties, Disclaimers, and Limitations of Liability. THE PROGRAM AND THE PROGRAM PRODUCTS AND SERVICES, INCLUDING THE SOFTWARE AND THE PRODUCTS, ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. HEALTHFIRST MAKES NO REPRESENTATION OR WARRANTY THAT THE PROGRAM OR THE PROGRAM PRODUCTS AND SERVICES, INCLUDING THE SOFTWARE AND THE PRODUCTS, WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS OR THAT RESULTS FROM USE OF THE PROGRAM OR THE PROGRAM PRODUCTS AND SERVICES, INCLUDING THE SOFTWARE AND THE PRODUCTS, WILL BE ACCURATE, RELIABLE OR SUITABLE FOR CUSTOMER PURPOSES.

IN NO EVENT SHALL HEALTHFIRST BE LIABLE TO A CUSTOMER WITH RESPECT TO THE PROGRAM PRODUCTS AND SERVICES, INCLUDING THE SOFTWARE AND THE PRODUCTS, FOR ANY (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE OR CONSEQUENTIAL DAMAGES, (B) LOSS OF PROFITS, (C) BUSINESS INTERRUPTION, (D) LOSS OF OR DAMAGE TO REPUTATION OF ANY PARTY, OR (E) ANY DAMAGES AWARDED IN ANY DISPUTE BETWEEN CUSTOMER AND ANY THIRD PARTY.

HEALTHFIRST’S (AND THEIR AFFILIATES’) MAXIMUM COMBINED AGGREGATE LIABILITY TO CUSTOMER FOR ANY CLAIMS, DAMAGES, INJURIES OR CAUSES WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR PROGRAM PRODUCTS AND SERVICES, INCLUDING THE SOFTWARE AND THE PRODUCTS, AND REGARDLESS OF THE FORM OF ACTION (WHETHER SUCH LIABILITY ARISES DUE TO NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR FOR ANY OTHER REASON), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE AMOUNT PAID, IF ANY, BY CUSTOMER TO HEALTHFIRST IN CONNECTION WITH THE PROGRAM IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (B) US $100.00.

7. Indemnity. Customer agrees to defend, indemnify and hold harmless HealthFirst and each of their respective directors, officers, employees, affiliates, and agents from and against all damages, costs, liabilities and expenses (including reasonable attorneys’ fees) incurred in connection with any claim or demand made by any third party arising out of: (i) Customer’s (or any third party’s) use of or access to Customer’s Program membership or account or the Program Products and Services, including the Products and Software, other than in accordance with this Agreement, (ii) Customer’s or any Third Party’s negligence, willful misconduct, violation of applicable laws or breach of this Agreement, or (iii) the infringement by Customer or any Third Party of any intellectual property or other right of any person or entity. HEALTHFIRST reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify HealthFirst hereunder and Customer agrees to cooperate with our defense of these claims.

8. Electronic Communications. The communications between Customer and HealthFirst may be via electronic means, whether via posting on any websites or communications with Customer via e-mail. For contractual purposes, Customer (1) consents to receive communications from HealthFirst in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that HealthFirst provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Customer’s statutory rights.

9. Cost Reporting. The costs for any replenished or replaced Products in Customer Crash Cart units covered by this Agreement (which Products are limited to those Products listed in the Medication List included in this Agreement which are replenished solely due to expiration and/or replaced solely due to usage during an Emergency Event) are included in the cost of each Customer Crash Cart unit and paid for through Customer’s Membership Fees. There is no individual charge or cost for replenished Products, other than as being part of the applicable Customer Crash Cart unit. Customer acknowledges that it will not bill or invoice third party payers including Medicare, Medicaid, TRICARE, CHIP or any other state or federal health care programs separately for any replenished Products, nor list individual costs for replenished Products (apart from the total cost of the Customer Crash Cart units on which such replenished Products are carried) on any cost reports submitted to any such third party payers.

10. Miscellaneous. This Agreement shall be governed by the laws of the State of New York, without reference to conflict of laws principles. The failure of HEALTHFIRST to exercise in any respect any right provided for herein shall not be deemed a waiver of that or any further rights hereunder. HealthFirst shall be liable for any failure to perform its obligations hereunder and/or with respect to the Program Products and Services where such failure results from any cause beyond its reasonable control, including, but not limited to, mechanical, electronic, or communications failure or degradation. If any provision of this Agreement is found to be unenforceable, invalid or illegal, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and be enforceable. This Agreement is not assignable, transferable or sub-licensable by Customer. Customer agrees that this Agreement, and the documents and materials incorporated herein by reference, are the complete and exclusive statement of the mutual understanding of Customer and Customer, and supersede all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No agency, partnership, joint venture, or other relationship is created as a result of this Agreement and neither Customer nor the Customer shall have any authority of any kind to bind the other in any respect whatsoever. Any notices to HealthFirst shall include a copy to General Counsel at 135 Duryea Road, Melville, New York, 11797; Attn: General Counsel; Fax: (631) 843-5660.