ADDITIONAL TERMS AND CONDITIONS

Rental of Products

Customer hereby agrees and acknowledges that any products rented or leased under this Agreement are the property of MasVida and Customer is only permitted to use the same as expressly set forth herein. During the term of this Agreement, MasVida shall have the right to inspect the product upon its request at Customer’s facility. Billing for Products shall begin upon delivery of such Products. If, for any reason, MasVida is unable to deliver the Products upon arrival at the location provided by Customer, Customer shall be charged a fee for each such failed delivery attempt, pursuant to MasVida policies as may be amended from time to time.

Unsatisfactory Services/Products

In the event Customer claims that any Services or Products provided under this Agreement are unsatisfactory, it shall notify MasVida of such specifying why such Services and/or Products are unsatisfactory. MasVida will have a reasonable amount of time, but in no event less than twelve (12) hours, to remedy any unsatisfactory Services or Products.

Termination

MasVida may terminate this Agreement at any time that Customer loses any applicable license or is in active default of its payment obligations hereunder and any failure by MasVida to terminate this Agreement during any default of the payment obligations hereunder shall not affect MasVida’s right to terminate this Agreement pursuant to this Section at any time thereafter. Either Party may terminate this Agreement in the event that either Party files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a voluntary or involuntary petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within sixty (60) days of the filing thereof. No termination hereof shall relieve Customer of its payment obligations hereunder.

Customer Responsibility

Unless otherwise set forth herein or any applicable request, it is the responsibility of the Customer to operate and maintain all Products in proper working order pursuant to the manufacturer’s recommendations and solely in a manner consistent with the use for which it was designed while in Customer’s possession custody or care. The Customer shall be responsible for carefully and properly using and operating the Products solely for the purpose for which it is intended. Customer agrees not to alter, repair or transfer the Products to another facility or resident without MasVida’s prior written consent. Customer shall notify MasVida prior to any sale of a facility that is owned, managed or otherwise controlled by Customer that is covered by this Agreement.

Return of Products

Upon expiration or termination of this Agreement, or when a Product is no longer needed as notified by Customer (“Return Notice”), the Product will be retrieved within three (3) business days Billing for such Products shall stop on the date that Customer provides such Return Notice unless MasVida is unable to retrieve any DME or Products as a result of an action or inaction of Customer or its employees. If MasVida is unable to retrieve the Products upon arrival for the Product pick-up, Customer shall be charged a fee for each failed attempted pick-up, pursuant to MasVida policies as may be amended from time to time. There will be only two attempts for Product pick-up, and after two failed pickups, Customer will be responsible for the replacement cost of the Product. Customer shall return, in a good and non-contaminated condition, all cylinders, with valves closed, complete with caps and fittings. Customer shall pay MasVida the replacement value of any contaminated, lost or damaged cylinders, caps or fittings, or other Products. Customer shall not permit cylinders or other storage containers furnished hereunder to be filled with any product not furnished by MasVida. Customer shall notify MasVida prior to any sale of a facility that is owned, managed or otherwise controlled by Customer that is covered by this Agreement. Should Customer sell any facility covered by this Agreement, Customer shall return the Products prior to the sale of the facility unless it notifies MasVida that the Products will be staying at the facility and permits MasVida to perform a walkthrough to confirm the location and condition of the Products prior to the transfer of the facility.

Return of Supplies

Customer may, at its option, within thirty (30) days of receiving supplies, request a return of supplies if unopened and in mint condition. MasVida reserves the right to deny a return order if supplies fail to meet quality standard. Upon return, Customer agrees to pay a fifteen percent (15%) restocking fee, and all applicable shipping charges, which shall be netted against any credit received. Any credit received will be in the form of a credit memo to future transactions.

Risk of Loss. Rented/leased Products

Customer shall take all reasonable steps and precautions necessary to protect the Products, including without limitation, reasonable steps necessary to prevent Products from being lost or stolen, intentionally misused, destroyed, or damaged. All Products shall be returned to MasVida in the same condition as it was delivered, reasonable wear and tear accepted. Customer shall be responsible for and bear all risk of loss or damage of the Products while in Customer’s possession, custody or control including, without limitation, damage, destruction, infestation, soiling, loss or theft of the Products from all causes whatsoever, including acts of God, whether or not due to the fault of Customer. No loss or damage to the Product shall relieve Customer of its obligations pursuant to this Agreement.

Notice of Loss or Accident

In the event of an accident, loss, theft, or damage to the Products during the term of this Agreement, Customer agrees to notify MasVida, as soon as possible, by telephone and, thereafter, to immediately report in writing to MasVida all necessary information relating to the loss or accident. Customer shall bear all liability related to the lost/stolen Products in its possession, custody or control, and MasVida shall no longer be responsible for maintaining such Product.

Reporting/Notice Requirements

A Party will immediately report to the other Party any event of which the reporting party becomes aware that suggests that any Product, or Service, for any reason: (a) may have caused or contributed to a death or serious injury; (b) has malfunctioned and such malfunction and such malfunctions would be likely or cause or contribute to a death or serious injury if the malfunction were to occur again, or (c) that any third party makes a claim to related to any Services or Products provided under this Agreement.

Product Hazards

Products, including but not limited to medical gases, are sold on the condition that they be handled, used and disposed of in conformance with recognized industry and professional standards, including those related to the protection of human health and the environment. Customer acknowledges that there are hazards associated with the use of some of the Products, such as medical gases, that it understands such hazards, and that it is the responsibility of Customer to warn and protect all those exposed to such hazards.

Insurance

To protect MasVida from any claims arising out of the use or operation of the Products, Customer agrees to be the absolute insurer of the Products while the Products remain in Customer’s possession, custody or control. Customer agrees to obtain and maintain commercial general liability coverage acceptable to MasVida with the minimum limits of (a) $1,000,000 per person and $1,000,000 per occurrence for personal injury (including death); and (b) “all risk” physical damage coverage on the Products for not less than $250,000. Customer’s commercial general liability policy shall include bodily injury, property damage, including loss of use, contractual liability that meets the definition of an insured contract. The policy shall be endorsed to include the following additional insured language: MasVida Health Care Solutions, LLC shall be named as an additional insured. All policies shall be endorsed specifically to provide that the coverage required under this Agreement will be primary and that any insurance carried by MasVida shall be excess and noncontributory. Customer shall furnish MasVida with certificates of such insurance satisfactory to MasVida within five (5) days of request by MasVida and shall notify MasVida of any changes or cancellations of said insurance coverage at least ten (10) days prior to any change or cancellation and immediately obtain substitute coverage. Each insurance policy required by this Contract must be in effect at or prior to commencement of Services under this Agreement and remain in effect for the term of this Agreement. Failure to maintain the insurance policies as required by this Contract or to provide evidence of renewal is a material breach of contract. In the event of any loss or damage, MasVida will be subrogated to Customer’s rights to recover against any Person who may be responsible for the same. Customer will, as requested by MasVida from time to time, execute and deliver instruments and papers and take all actions concerning the transfer of such rights.

12. Hours of Operation/Delivery

It is mutually agreed that the delivery, installation, maintenance or repair of the Products, and any other required service under this Agreement, shall be performed in a timely manner and every attempt to respond the same day as the request. All orders placed between 6:00 pm and 8:30 am Monday thru Friday, on weekends or holidays must be called into 877-790-5994 and all calls after 3:00 pm may be subject to MasVida’s then current delivery fee if same day delivery is requested, pursuant and subject to MasVida’s policies as may be amended from time to time.

13. Bulk Orders

All delivery commitments, including but not limited to those set forth in Section 5(a)(iii) of the Agreement shall not apply to Bulk Orders. Bulk Orders will be filled and delivered on a case-by-case basis and as communicated by MasVida within 48 hours of MasVida’s acceptance of such Bulk Order. All Bulk Orders will be billed for a minimum of thirty (30) days. For the purposes of this Agreement, Bulk Orders shall be defined as five or more of the same item ordered in a 48 hour time frame.

14. Notices

All notices required by this Agreement shall be in writing and shall be given (and shall be deemed to have been received) by delivery in person or by registered or certified mail (postage prepaid, return receipt requested) to the respective Party at such Party’s address set forth by its signature hereto or such other address as provided by a Party to the other Party in accordance with this Section.

15. Default and Remedies

Customer shall be in default hereunder and there shall be breach of this Agreement if Customer fails to pay any amounts when due hereunder or fails to perform other obligations set forth in this Agreement and such failure continues for a period of ten (10) days after issuance of written notice by MasVida. In the event of Customer’s default hereunder, MasVida may at its option, be entitled to any and all lawful remedies, including but not limited to any of the following: a) by notice to Customer, terminate this Agreement; b) by notice to Customer, declare immediately due and payable all monies to be paid by Customer during the initial term and/or any renewal thereof; and/or c) suspend services temporarily until acceptable arrangements can be made. MasVida shall also be entitled to recover all the reasonable collection expenses, court costs, and attorney fees. MasVida shall be in default hereunder and there shall be breach of this Agreement if MasVida fails to perform any obligation under this Agreement and such failure continues for a period of ten (10) days after issuance of written notice by Customer. Customer’s only remedy for a default under this Agreement by MasVida is to terminate the Agreement.

16. Limits of Liability: Indemnification

Each party agrees to and shall defend, indemnify, reimburse and hold harmless the other party, including affiliates and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns from and against all third-party claims, demands, costs, liability, expenses and damages (including reasonably attorney’s fees) and all associated losses, to the extent arising out of (a) a party’s gross negligence or willful misconduct, or (b) a material breach by a party of any of its representations, warranties, covenants, or agreements under this Agreement. In no event will either party be responsible for (a) any lost profits; or (b) any lost revenue or goodwill; or (c) any indirect or consequential damages.

17. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

MASVIDA DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES CONCERNING THE PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT OTHER THAN AS EXPRESSLY SET FORTH HEREIN. IN THAT REGARD, MASVIDA WARRANTS THAT THE PRODUCTS SHALL BE CLEAN AND IN WORKING ORDER WHEN DELIVERED. MASVIDA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION OR FITNESS OF PRODUCTS OR SERVICES. MASVIDA HEREBY EXPRESSLY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES CONCERNING THE PRODUCTS OR SERVICES PROVIDED HEREUNDER INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. UNLESS OTHERWISE SET FORTH HEREIN, CUSTOMER ACKNOWLEDGES THAT MASVIDA HAS NOT MADE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE PRODUCTS OR SERVICES COMPLIANCE WITH ANY LAW, ORDINANCE OR REGULATION. THE PARTIES ACKNOWLEDGE THAT MASVIDA SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, AND/OR INCIDENTAL DAMAGES RELATING TO THE PRODUCTS OR SERVICES PROVIDED HEREUNDER INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM THE USE OF THE PRODUCTS, OR CAUSED BY ANY DEFECT, FAILURE OR MALFUNCTION, WHETHER A CLAIM FOR SUCH DAMAGE IS BASED UPON WARRANTY, CONTRACT, NEGLIGENCE OR OTHERWISE. IT IS EXPRESSLY AGREED THAT CUSTOMER’S DAMAGES UNDER OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO ITS ACTUAL DAMAGES. MASVIDA SHALL NOT BE LIABLE FOR ANY DAMAGE FOR FAILURE OR DELAY OF PERFORMANCE RESULTING, DIRECTLY OR INDIRECTLY, FROM ANY ACT BEYOND ITS REASONABLE CONTROL (A.K.A. “FORCE MAJEURE”).

18. MANDATORY ARBITRATION

EACH PARTY HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OTHER THAN AS EXPRESSLY SET FORTH HERIN. EACH PARTY HERETO: (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

a. Arbitration

All claims, demands, disputes or controversies of every kind or nature that may arise between the Parties relating to or arising from this Agreement, save and except claims for non-payment, specific performance or equitable relief (which may be submitted to a court of competent jurisdiction), shall be settled by binding arbitration in Fort Worth, Texas before, and conducted according to the Commercial Rules of, the American Arbitration Association or its successor body (“AAA”). The Parties agree that this arbitration agreement shall be enforceable to the full and maximum extent permitted under the Federal Arbitration Act and Texas Arbitration Act. The Parties intend and agree that the award of the arbitrator shall conclusively determine the disputes between them, and that the final award of the arbitration shall be final, binding and non-appealable. The Parties further agree that they shall faithfully abide by and perform any award rendered by the arbitrator and that a judgment upon the award may be entered in any court of competent jurisdiction. The fees of arbitration shall be borne by the Party incurring the same.

19. Independent Contractor

In performance of the Services discussed herein, MasVida and Customer shall each be, and at all times are, acting and performing as an independent contractor, and not as a partner, a co-venturer, an employee, an agent, or a representative of the other Party. No employee or agent of one Party to this Agreement shall be considered an employee or agent of the other Party.

20. No Requirement to Refer

This Agreement is not intended to influence the judgment of any physician or provider in choosing medical specialists or medical facilities appropriate for the proper care and treatment of its residents. Neither MasVida nor Customer shall receive any compensation or remuneration for referrals.

21. No Third-Party Beneficiaries

Except as expressly provided elsewhere herein, nothing in this Agreement is intended to be construed or be deemed to create any rights or remedies in any third party.

22. Disputes

Notwithstanding the foregoing, MasVida may, in its discretion, elect to pursue any dispute regarding nonpayment of any amount owing to it hereunder in any court of competent jurisdiction.

23. Attorney’s Fees & Costs

In the event MasVida prevails in a lawsuit or arbitration to collect any amounts due hereunder, or for the return of any Products provided under the terms of this Agreement, MasVida shall recover its reasonable and necessary attorneys’ fees and any other reasonable and necessary cost of collecting any debt owed by the Customer. In the event of receivership or bankruptcy, if legal action is required to secure possession of MasVida property under this paragraph, Customer shall pay MasVida reasonable attorney’s fees and costs incurred.

24. Waiver

Any waiver of any right under this Agreement shall not be valid unless the waiver is in writing signed by the Party sought to be charged with the same. Any such waiver shall not constitute or be construed as a waiver of any subsequent or other defaults.

25. Assignment

MasVida shall have the right to assign this Agreement to any other person, firm, or corporation without notice to Customer, and shall have the further right to subcontract any services which it may perform. Customer shall have the right to assign it rights, duties, or obligations under this Agreement to any third party with the written notice to MasVida, which shall not unreasonably be withheld. This Agreement shall be binding upon the successors, executors, personal representatives, and assigns of the parties hereto.

26. Compliance

The amounts to be paid to MasVida under this Agreement have been determined by the Parties through good faith and arms-length bargaining to be fair market value of the services to be rendered thereunder. No amount paid or to be paid under this Agreement is intended to be, nor will it be construed as, an offer, inducement or payment, whether directly or indirectly, overtly or covertly, for the referral of patients by MasVida to Customer, or by Customer to MasVida, or for the recommending or arranging of the purchase, lease or order of any item or service.

A. Certification of Anti-Kickback Statute Compliance

Each Party certifies that it will comply with the Anti-Kickback Statute, set forth at 42 U.S.C.§ 1320a-7b(b) (“Anti-Kickback Statute”) and related federal or state health care program requirements in the performance of this Agreement.

B. Discount Safe Harbor

The Parties acknowledge that the prices under this Agreement may reflect discounts, rebates, or other reductions in price (collectively, “discounts”) and it is their intention that such discounts will be administrated consistent with the discount exception to the federal Anti-Kickback Statute (42 USC 1320a-7b(B) (3) (A)) and the related regulatory discount safe harbor (42 CFR 1001.952(h)). MasVida will reflect when a discount applies on invoices or alternative documents, and Customer may request additional documentation of purchases and discounts under this Agreement as necessary to facilitate appropriate reporting. To the extent and as required by applicable law, regulations, or other contractual obligations, it is Customer’s responsibility to appropriately report or reflect such discounts, including any bundled discounts, on cost reports of claims submitted to third party payors, including but not limited to federal or state health care programs. Further, Customer will retain documentation provided by MasVida relating to purchases made and discounts received under this Agreement and make it available to federal or state health care program representatives upon request.

27. Entire Agreement

This Agreement contains the entire understanding between the Parties with respect to the subject matter hereof. This Agreement may not be amended or modified except by written instrument executed by the Parties.

28. Governing Law

This Agreement shall be governed and construed in accordance with the laws of the State of Texas without regard to the conflict of law provisions.

29. Invalid Provisions

In the event that any of the provisions, or portions thereof, of this Agreement are held to be void, unenforceable or invalid, the remainder of the provisions shall remain in full force and effect and shall in no way be effected, impaired, or invalidated, and in lieu of such unenforceable provision there will be added automatically as part of this Agreement a provision as similar in terms as may be valid and enforceable.

30. Authority

Each person executing this Agreement on behalf of the Party warrants and represents that he/she/they has the authority to execute and bind the Party, its affiliates, related companies and facilities.

31. Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A signature sent hereon by facsimile or electronic means shall constitute an original signature for all purposes.

32. Headings

The headings to the sections of this Agreement are included merely for convenience of reference and shall not affect the meaning and the language included herein.

33. Construction

The Parties acknowledge that the Parties and their counsel have reviewed this Agreement (or had the opportunity to review this Agreement) and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement.

34. Reservation of Rights

Subject to the limited rights expressly granted hereunder, MasVida its affiliates, its licensors and content providers reserve all of their right, title and interest in and to the services and content of the MasVida portal including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

34. Confidentiality

The terms and conditions (including the prices offered by MasVida) contained herein, and all addenda or amendments to the Parties’ Agreement (collectively the “Contract Terms”), are considered confidential. In addition, each Party acknowledges that as part of its performance under this Agreement, it may be required to disclose to the other Party certain information pertaining to patients (collectively, “Patient Information”) and may also be required to disclose to the other Party certain business or financial information (collectively, with the Patient Information, the “Confidential Information”). Each Party agrees that it shall treat Confidential Information with the same degree of care it affords its own similarly confidential information and shall not, except as specifically authorized in writing by the other Party or as otherwise required by law, reproduce any Confidential Information or disclose or provide any Confidential Information to any person. A Party that discloses Confidential Information shall be entitled to injunctive relief to prevent a breach or threatened breach of this Section, in addition to all other remedies that may be available. This Section shall survive the termination of this Agreement. The terms and conditions contained herein and all addenda to this Agreement are considered confidential and may not be released to a third party (other than a party’s agents representatives or third parties under similar confidential restrictions) without the specific agreement of the parties.