Attached files
| file | filename |
|---|---|
| EX-32.1 - CERTIFICATE PURSUANT TO SECTION 18 U.S.C. PURSUANT TO SECTION 906 OF THE SARBANE - DYNATRONICS CORP | exhibit32-1.htm |
| EX-31.1 - CERTIFICATION PURSUANT TO RULE 13A-14(A)/15D-14(A) CERTIFICATIONS SECTION 302 OF - DYNATRONICS CORP | exhibit31-1.htm |
| EX-23.1 - CONSENTS OF EXPERTS AND COUNSEL - DYNATRONICS CORP | exhibit23-1.htm |
| EX-21 - SUBSIDIARIES OF THE REGISTRANT - DYNATRONICS CORP | exhibit21.htm |
| EX-10.15 - EMPLOYMENT AGREEMENT - DYNATRONICS CORP | exhibit10-15.htm |
| EX-10.14 - CONSULTING AGREEMENT - DYNATRONICS CORP | exhibit10-14.htm |
| EX-10.13 - SEPARATION AND PAY CONTINUATION AGREEMENT - DYNATRONICS CORP | exhibit10-13.htm |
| 10-K - ANNUAL REPORT - DYNATRONICS CORP | dynt2020_10k.htm |
Exhibit 10.16
CERTAIN PORTIONS OF THE EXHIBIT THAT ARE NOT MATERIAL AND WOULD BE
COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED HAVE BEEN REDACTED
PURSUANT TO ITEM 601(b)(10)(iv) OF REGULATION S-K. [***] INDICATES
THAT INFORMATION HAS BEEN REDACTED.
Brian
Baker
President
& CEO
Dynatronics
Corporation
7030
Park Center Dr.
Salt
Lake City, Utah 84121
This
document constitutes a formal Master Service Agreement (the
“Agreement”) between Dynatronics
(“Customer”) and Millstone Medical Outsourcing, LLC
(“Millstone”). This Agreement will begin as of the date
that this Agreement is executed by both parties and shall remain in
effect for an initial term of three (3) years from that date and
may be extended or terminated pursuant to the terms of this
Agreement.
The
specific details of engineering, packaging, audit or other service
arrangements will be detailed in one or more Statements of Work,
Quality Agreements, and/or Master Batch Record, all of which are
hereby incorporated by reference into this Agreement. Pricing will
be set forth in each applicable Statement of Work.
Standard Terms and Conditions
1.
Performance. Millstone will
provide Customer with all services and work set forth in the
Statements of Work and/or Master Batch Record (the
“Services”) by and between the parties to this
Agreement in consideration of the fees set forth in each Statement
of Work. From time to time, Customer may provide Millstone with a
Purchase Order (requesting the performance of Services and/or
additional services not otherwise set forth in a Statement of Work
(any such additional services shall be included in the definition
of Services). This Agreement, together with any duly-executed
Quality Agreement, Statement(s) of Work, Master Batch Record,
Non-Disclosure Agreement and any Purchase Orders taken together
constitute this Agreement.
2.
Term and Termination. This
Agreement shall commence as of the date that this Agreement is
executed by both parties (the “Effective Date”) and
shall extend for an initial period of three (3) years from the
Effective Date and shall thereafter automatically renew each year
for successive one (1) year terms unless terminated earlier in
accordance with this Agreement; provided, however, that the terms
and conditions of this Agreement shall remain in effect beyond the
expiration of the current term or any termination pursuant to
section 2(b)(iii) until the expiration of any Statements of Work or
Purchase Orders outstanding as of the date of termination and the
full and complete payment by Customer for Services provided
thereunder. Any reference in this Agreement to “term”
shall refer to the current term whether it is the initial three (3)
year term or any renewal term.
a)
Either party may
terminate this Agreement (i) upon not less than [***] days written
notice in the event the other party materially breaches its
obligations hereunder, unless such breach has been cured within
such [***] day period, or within a reasonably extended period if
Customer has begun to cure the breach and Millstone has agreed to
an extended cure period, or (ii) upon written notice, effective
immediately, if the breach is causing continuing damage or loss to
the non-breaching party and such breach is incapable of cure.
Failure to make timely payment for the Services provided by
Millstone hereunder shall constitute a material breach of this
Agreement.
1
CERTAIN PORTIONS OF THE EXHIBIT THAT ARE NOT MATERIAL AND WOULD BE
COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED HAVE BEEN REDACTED
PURSUANT TO ITEM 601(b)(10)(iv) OF REGULATION S-K. [***] INDICATES
THAT INFORMATION HAS BEEN REDACTED.
b)
Either party may
terminate this Agreement by written notice if:
i.
the other party
petitions for relief under any bankruptcy law or if any bankruptcy
petition should be filed against the other party and the same is
not discharged within thirty (30) days; the other party is the
subject of an involuntary petition in bankruptcy; a receiver is
appointed for the business of the other party; the other party
makes an assignment for the benefit of creditors; the other party
is unable to pay its debts as they fall due; the other party
altogether ceases to do business;
ii.
total destruction
of the premises where the Services are provided or partial
destruction of such premises if the partial destruction prohibits
Millstone from satisfactorily performing the Services;
or
iii.
the terminating
party provides at least [***] days prior written notice to the
other party. The terminating party may terminate with or without
cause if such termination is made pursuant to this Section
2(b)(iii).
c)
In the event either
party exercises its right to termination for any reason pursuant to
this Agreement, Customer shall pay Millstone for the Services
performed up to the date of termination within thirty (30) business
days of the date of termination and for the amount of any Services
provided after the date of termination, as applicable, pursuant to
Section 2(a) and in accordance with the invoices pertaining to such
Services.
d)
Any conditions of
this Agreement which by their terms or nature extend beyond the
termination or cancellation of this Agreement shall remain in
effect and shall apply to the parties' respective successors and
permitted assignees.
3.
Conflicts. In the event of an
express conflict between a provision of this Agreement, a
Statement(s) of Work, and/or a Purchase Order, this Agreement shall
prevail over the Statement(s) of Work and the Statement(s) of Work
shall prevail over any Purchase Order. The terms of this Agreement
shall prevail over the terms of any Quality Agreement. In the event
of an express conflict among provisions of this Agreement and any
other manner of subsequent agreement between Customer and Millstone
with respect to the subject matter hereof, the terms of this
Agreement, in the order set forth above in this Section 3, shall
prevail. Notwithstanding the foregoing, if any subsequent
agreement, including, without limitation, a Statement of Work or
Purchase Order, expressly references this Agreement and states that
a specific term(s) or provision(s) of the subsequent agreement
shall prevail, then such specific term(s) or provision(s) of the
subsequent agreement shall prevail over the terms of this
Agreement.
4.
Pricing and
Billing.
As
consideration for Millstone’s performance hereunder, Customer
will pay to Millstone all fees based upon pricing and billing terms
and conditions for the Services as set forth in the Statement(s) of
Work or accompanying schedules or attachments.
Millstone will
provide Customer with a monthly or weekly invoice for all Services
performed during the particular period to which a particular
invoice applies. All periodic charges will be invoiced at the
beginning of each month or period. For validation services,
Customer shall prepay fees for the writing of documents. Execution
and test fees will be invoiced when samples are sent out to the
third party test facilities. If test costs are greater than the
estimate provided, Millstone will pass through the difference to
the Customer. Customer will pay such invoices via EFT within thirty
(30) days after receipt thereof. With all past due amounts,
interest shall accrue at a rate of [***] per annum.
2
CERTAIN PORTIONS OF THE EXHIBIT THAT ARE NOT MATERIAL AND WOULD BE
COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED HAVE BEEN REDACTED
PURSUANT TO ITEM 601(b)(10)(iv) OF REGULATION S-K. [***] INDICATES
THAT INFORMATION HAS BEEN REDACTED.
5.
Limitation of
Liability/Customer’s Risk of Loss.
(a)
Limitation of Liability Generally and
Customer’s Risk of Loss. Millstone’s aggregate
maximum liability to Customer with respect to any expense, damages,
loss, injury or liability of any kind or from any cause whatsoever,
and regardless of the form or cause of action shall not exceed
Millstone’s net service revenues actually collected by
Millstone from Company in the six (6) months immediately preceding
the event giving rise to such liability. Millstone shall be liable
only for proven actual damages incurred as a direct result of
Millstone’s material breach of this Agreement, and not for
any other reason except Millstone’s gross negligence, willful
misconduct. MILLSTONE SHALL NOT BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL LOSSES OR DAMAGES
TO CUSTOMER, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFIT OR
LOSS OF USE EVEN IF MILLSTONE IS ADVISED OF THE POSSIBILITY OF SUCH
LOSSES OR DAMAGES. Customer may not exercise any right of set-off
with respect to payments due to Millstone. Customer acknowledges
and agrees that all products, materials, and any other Customer
property shall remain owned by Customer at all times and Customer
shall be responsible for notifying its creditors, as applicable,
and for insuring products, implants, kits and any other Customer
property while at the Millstone facilities, in transit, or stored
at off-site locations. AS SUCH, NOTWITHSTANDING ANY PROVISION
HEREIN TO THE CONTRARY, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES
THAT CUSTOMER ASSUMES THE RISK OF LOSS AND MILLSTONE SHALL HAVE NO
LIABILITY FOR LOSS OF OR DAMAGE TO ANY OR ALL CUSTOMER PROPERTY IN
MILLSTONE’S FACILITIES, IN TRANSIT, OR STORED OFF-SITE, FOR
LOSS RESULTING FROM ANY REASON, INCLUDING WITHOUT LIMITATION, LOSS
RESULTING FROM FIRE OR OTHER CASUALTY, FAILURE OF MILLSTONE’S
ENVIRONMENTAL CONTROLS, OR ANY CAUSE REASONABLY BEYOND THE CONTROL
OF MILLSTONE (INCLUDING, WITHOUT LIMITATION, ACTS OF NATURE AND
CHANGES IN APPLICABLE LAWS OR REGULATIONS), EXCEPT THAT THIS
PROVISION SHALL NOT APPLY TO LOSS RESULTING FROM MILLSTONE’S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(b)
Special Limitation of Liability for
Shipment or Packaging Failure. Millstone will process all
shipments in accordance with client-approved documentation and
client-supplied shipment configuration validations when applicable.
Millstone will use best efforts to ensure product safety and
integrity in preparing product for shipment and ship product via
the requested shipment method. Millstone’s aggregate maximum
liability to Customer with respect to any expense, damages, loss,
injury or liability to the extent caused by any negligence or
willful misconduct of a third party courier (e.g. Federal Express)
shall not exceed [***] per shipment, subject to the aggregate limit
set forth in Section 5(a). Further, Millstone shall not be liable
for damage to Customer’s products other than (i) for proven
actual losses and damages incurred as a direct result of
Millstone’s failure to comply with client-approved
documentation and client-supplied shipment configuration
validations as set forth in any Statements of Work or Quality
Agreement, (ii) Millstone’s failure to comply with packing
and shipping industry standards, or (iii) Millstone’s gross
negligence.
3
CERTAIN PORTIONS OF THE EXHIBIT THAT ARE NOT MATERIAL AND WOULD BE
COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED HAVE BEEN REDACTED
PURSUANT TO ITEM 601(b)(10)(iv) OF REGULATION S-K. [***] INDICATES
THAT INFORMATION HAS BEEN REDACTED.
(c)
No Liability for Adherence to Customer
Instructions. Notwithstanding any provision herein to the
contrary, Millstone shall have no liability to Customer for any
claims, losses or expenses to the extent directly caused by
Millstone’s adherence to the instructions and/or procedures
designated in writing by and specific to Customer (whether set
forth in a Statement of Work, Quality Agreement or
otherwise).
6.
Indemnity.
a)
Millstone agrees
that it shall indemnify and hold harmless Customer, its
subsidiaries, affiliates, successors, assigns, officers, directors,
managers, agents and representatives, (collectively, "Customer
Indemnified Parties") to the fullest extent permitted by law, from
and against all losses, liabilities, damages, and expenses
(including reasonable attorneys’ fees) incurred by Customer
Indemnified Parties in any third party claim, action, or lawsuit,
to the extent such losses, liabilities, damages, and expenses are
finally determined by a court of competent jurisdiction (or by
specific reference in a settlement of litigation consented to by
Millstone) to have been directly caused by Millstone’s breach
of a material obligation of Millstone under this Agreement, except
to the extent that such losses, liabilities, damages, and expenses
resulted from Customer’s negligence or willful misconduct. If
Customer seeks indemnification hereunder from Millstone with
respect to a third party claim, Customer will notify Millstone as
promptly as practicable and give Millstone an opportunity to defend
the claim. Customer will extend reasonable cooperation in
connection with such defense. If Millstone fails to defend the
claim within a reasonable time, Customer may assume the defense
thereof, and Millstone will repay Customer for all expenses
incurred in connection with such defense (including reasonable
attorneys’ fees, settlement payments and payments of
judgments) until Millstone assumes such defense. The foregoing
indemnity obligations will extend only to the losses, costs or
expenses actually suffered by Customer, reduced by any offsetting
funds or services received from any third party including any
insurer. Customer Indemnified Parties must approve any resolution
or course of action in a matter that could directly or indirectly
have any adverse effect on Customer Indemnified Parties or could
serve as a precedent for other matters. Millstone’s
indemnification obligations shall be subject to the terms and
limitations set forth in Section 5 and Section 6(c).
b)
Customer agrees
that it shall indemnify and hold harmless Millstone, its
subsidiaries, affiliates, successors, assigns, officers, directors,
managers, employees, agents and representatives (collectively,
“Millstone Indemnified Parties”), to the fullest extent
permitted by law, from and against all losses, liabilities,
damages, and expenses incurred by Millstone Indemnified Parties in
any third party claim, action, or lawsuit, to the extent such
losses, liabilities, damages, and expenses are directly caused by
(i) any breach of or failure by Customer to perform any of its
representations, warranties, covenants or material obligations set
forth in this Agreement, (ii) Customer’s property or products
violating a third party’s rights, including without
limitation, a third party’s intellectual property rights,
(iii) Customer’s breach or violation of any law, regulation,
or ruling, or (iv) any act, error or omission (active or passive)
constituting negligence or willful misconduct by Customer or its
officers, directors, employees, agents, or affiliates. However,
Customer has no obligation to indemnify Millstone Indemnified
Parties to the extent the liability for which Millstone Indemnified
Parties seek indemnification was caused by the negligence or
willful misconduct of any Millstone Indemnified Parties. Customer
will respond promptly to any matter described above, and defend
Millstone Indemnified Parties. Customer will reimburse Millstone
Indemnified Parties for all costs of defending the matter,
including reasonable attorneys’ fees, incurred by Millstone
Indemnified Parties if Customer or Customer’s insurer does
not assume defense because of actual or potential conflicts of
interest. Millstone Indemnified Parties must approve any resolution
or course of action in a matter that could directly or indirectly
have any adverse effect on Millstone Indemnified Parties or could
serve as a precedent for other matters.
4
CERTAIN PORTIONS OF THE EXHIBIT THAT ARE NOT MATERIAL AND WOULD BE
COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED HAVE BEEN REDACTED
PURSUANT TO ITEM 601(b)(10)(iv) OF REGULATION S-K. [***] INDICATES
THAT INFORMATION HAS BEEN REDACTED.
c)
Notwithstanding
anything herein to the contrary, Millstone shall have no liability
or obligation to indemnify any Customer Indemnified Parties for any
claims, losses or expenses arising out of Millstone’s acts or
omissions, if such acts or omissions are a result of
Millstone’s adherence to the risk characteristics and/or
procedures designated or otherwise agreed to by Customer in any
Statements of Work, Quality Agreement, Purchase Order, Master Batch
Record and/or other valid agreement between Customer and
Millstone.
7.
Insurance. Millstone shall, at
its own cost and expense, maintain insurance in form and coverage
in accordance with industry standard business practices and
standards. Millstone shall furnish Customer with proof of such
insurance upon Customer’s reasonable request. Customer shall,
at its own cost and expense, maintain insurance in form and
coverage in accordance with industry standard business practices
and standards, but in any event, with minimum liability limits of
[***]. Such coverage limit shall in no way limit Customer’s
liability to Millstone hereunder. As set forth in Section 5,
Customer shall be responsible for insuring all of Customer’s
products, implants, kits and any other Customer property while at
Millstone facilities, in transit, or stored at off-site locations.
Customer shall provide certificate(s) of insurance to Millstone
evidencing compliance with the foregoing upon Millstone’s
reasonable request. Customer shall provide at least thirty (30)
days’ written notice to Millstone of any cancellation of any
of Customer’s insurance policies relevant to coverage for
indemnification, risk of loss, or any other liability of Customer
hereunder. If either party neglects to maintain sufficient
insurance, it shall be directly responsible to the other for any
losses arising hereunder. Customer shall not require Millstone to
include Customer as an “additional insured” or
“loss payee” on any Millstone insurance
policy.
8.
Compliance with Laws. Each
party hereto shall comply strictly with all applicable federal,
state and local laws, rules and regulations (collectively,
“Laws”) imposed by any governmental authority on any
activity of either party hereunder, and this Agreement is made
subject to all such Laws in effect now or in the
future.
9.
Non-solicitation. During the
term of this Agreement and for a period of one (1) year thereafter,
Customer shall not solicit, or use temporary services contractors
to solicit any employees or contractors of Millstone directly or
indirectly rendering services hereunder. In addition to its other
remedies at law and in equity, Millstone shall be entitled to seek
injunctive relief to enforce this provision or any other provision
set forth in this Agreement.
10.
Proprietary Information;
Confidentiality and Non-Disclosure. Millstone and Customer
agree to hold in confidence, any information which has been
designated, either in writing or verbally, by the disclosing party
as confidential information or is otherwise by its nature
confidential or proprietary to the disclosing party, including but
not limited to financial and other business information
(“Proprietary Information”). Proprietary Information
will be maintained in confidence for the term of this Agreement and
thereafter. All Proprietary Information will be returned by the
receiving party to the disclosing party when it is no longer needed
or upon the termination of this Agreement, whichever comes first.
Proprietary Information does not include (i) information lawfully
in the possession of the receiving party prior to the disclosure by
the disclosing party, (ii) information which becomes known to the
general public through no act or omission of the receiving party
and (iii) information which is lawfully disclosed to the receiving
party by a third party. Neither Millstone nor Customer shall use,
reproduce, copy or disclose any of the other party’s
Proprietary Information, in whole or in part, without the written
consent of the other party, except that Proprietary Information of
one party may be used, reproduced, copied or disclosed to others by
the other party on a confidential basis when such use,
reproduction, copy or disclosure is necessary for the receiving
party to perform Services, any Additional Services and/or any other
covenants or other obligations under this Agreement.
5
CERTAIN PORTIONS OF THE EXHIBIT THAT ARE NOT MATERIAL AND WOULD BE
COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED HAVE BEEN REDACTED
PURSUANT TO ITEM 601(b)(10)(iv) OF REGULATION S-K. [***] INDICATES
THAT INFORMATION HAS BEEN REDACTED.
11.
Assignment; Subcontractors.
Customer hereby consents to the assignment and transfer of this
Agreement by Millstone to any third party in connection with the
transfer of substantially all of Millstone’s assets, the sale
of a majority of Millstone’s outstanding membership or other
ownership interests, or a merger in which Millstone is not the
surviving entity. No other assignment or transfer of this Agreement
shall occur without the prior written consent of the
non-transferring party. Millstone may use one or more
subcontractors in the performances of Services under this
Agreement; provided, however, that Millstone shall ensure that such
subcontractors shall abide by and comply with the terms of this
Agreement, as applicable, and further provided that the use of such
subcontractors shall not relieve Millstone from any obligations
hereunder and Millstone shall be responsible for such
subcontractors' performance.
12.
Representations and
Warranties.
a)
Millstone
represents and warrants that all Services shall be performed in a
workmanlike manner and as may be further defined in the
Statement(s) of Work, a Purchase Order, the Master Batch Record
and/or Quality Agreement. Millstone shall maintain the premises
where the Services are provided in a neat, clean and orderly
manner.
b)
Except as provided
in Section 13(a) above, Millstone makes no representations or
warranties to Customer, express or implied, including without
limitation implied warranties of result, infringement,
merchantability or fitness for a particular purpose, design or use,
or implied warranties arising from course of dealing, usage and
trade or course of performance.
c)
Customer represents
and warrants to Millstone that all incoming shipments of Customer
products to Millstone have been adequately decontaminated prior to
shipment to Millstone, per federal regulatory requirements.
Customer represents and warrants that all goods shipped from
Customer facilities to Millstone are free of blood borne pathogens
and other harmful contaminants prior to forwarding to
Millstone.
d)
Customer represents
and warrants that the products, materials, and other Customer
property, provided to Millstone in connection with performance of
the Services, including, without limitation, the design or
operation of such products, materials, and other Customer property,
do not infringe upon, misappropriate or otherwise violate any right
of any third party, including, but not limited to, intellectual
property rights of a third party.
e)
Customer represents
and warrants that it is in compliance with the insurance coverage
requirements set forth in Section 7.
f)
Customer
acknowledges and agrees that this Agreement applies only to the
processing of Customer products; no other Customer company,
division or affiliate of Customer is covered except as may be set
forth in Section 6 or except as otherwise permitted under this
Agreement.
13.
Invalid Provisions.
If any provision of this Agreement is held to be unenforceable, the
unenforceable provision shall be construed as nearly as possible to
reflect the original intent of the parties and the remaining
provisions shall remain in full force and effect.
14.
No Third Party Reliance. Except
as otherwise expressly set forth herein, the terms and conditions
set forth in this Agreement are not intended for, nor shall they be
for the benefit of or enforceable by, any person or entity that is
not a party to this Agreement.
6
CERTAIN PORTIONS OF THE EXHIBIT THAT ARE NOT MATERIAL AND WOULD BE
COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED HAVE BEEN REDACTED
PURSUANT TO ITEM 601(b)(10)(iv) OF REGULATION S-K. [***] INDICATES
THAT INFORMATION HAS BEEN REDACTED.
15.
Governing Law; Disputes; Venue.
This Agreement will be subject to the laws of the Commonwealth of
Massachusetts without regard to its choice of law principles. Any
and all disputes arising hereunder shall be resolved by binding
arbitration before a single arbitrator in Boston, Massachusetts in
accordance with the rules of the American Arbitration Association.
Each party hereby consents to the selection of such exclusive
venue. The costs of such arbitrator shall be paid one-half by
Millstone and one-half by Customer, unless the arbitrator imposes
an alternative arrangement. The ruling of such arbitrator shall be
final, binding and not subject to appeal. The arbitrator shall have
the authority to order the reimbursement of legal fees and expenses
in connection with its ruling.
16.
Entire Agreement; Counterparts;
Amendments. This Agreement, together with its applicable
attachments and exhibits, constitutes one and the same legally
binding instrument and the entire agreement between the parties
with respect to its subject matter and supersedes all prior offers,
contracts, agreements, representations, and understandings made to
or with Customer, whether oral or written, relating to the subject
matter hereof. All amendments to this Agreement shall be in writing
and signed by authorized representatives of the parties. The
Agreement may be executed in counterparts and each such counterpart
shall constitute a single agreement. Executed signature pages
transmitted by facsimile or electronically shall be deemed original
signatures.
17.
Independent Contractors. All
parties shall be independent contractors, maintaining complete
control over their respective personnel and operations. Nothing
herein shall be deemed to constitute any party to be the partner of
the other, or to constitute either the agent or legal
representative of the other, or to create any fiduciary
relationship between them.
18.
Notices. Any notice, proposal
or communication required or permitted to be given hereunder shall
be given in writing and shall be delivered (i) in person, (ii) by
registered mail, postage prepaid, return receipt requested, or
(iii) by facsimile, addressed as follows:
To
Millstone:
580
Commerce Drive
Fall
River, MA 02720
Fax:
508-679-8414
Attn:
Karl Neuberger
To
Customer:
7030
Park City Dr.
Salt
Lake City, Utah 84121
Attn:
Brian Baker
19.
Force Majeure. If because of
force majeure, Millstone is unable to carry out any of its
obligations under this Agreement and if Millstone promptly notifies
Customer in writing, expressly claiming such force majeure,
Millstone’s obligations under the Contract shall be suspended
to the extent made necessary by such force majeure. All costs of
Customer incurred during a force majeure suspension of the
Agreement, including but not limited to the value of the product
and all costs concerning the manufacture and delivery of the
product, shall be solely at Customer’s expense, and Millstone
disclaims all liability for any costs incurred by Customer. As used
herein, “force majeure” means any cause reasonably
beyond the control and without fault or negligence of Millstone,
including but not limited to fire, flood, lightening, explosion,
war, strike, embargo, labor dispute, government requirement, power
outage, civil or military authority, act of god or nature,
inability to secure materials or transportation facilities, act or
omission of carriers or suppliers, acts or failures to act of any
governmental authority, or any other causes beyond
Millstone’s reasonable control whether or not similar to the
foregoing, which wholly or substantially prevents the packing,
transportation, loading, unloading, delivery, or storing of the
product.
7
CERTAIN PORTIONS OF THE EXHIBIT THAT ARE NOT MATERIAL AND WOULD BE
COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED HAVE BEEN REDACTED
PURSUANT TO ITEM 601(b)(10)(iv) OF REGULATION S-K. [***] INDICATES
THAT INFORMATION HAS BEEN
REDACTED.
20.
Waiver. The failure of any
party to insist in any one instance or more upon strict performance
of any of the terms and conditions hereof, or to exercise any right
or privilege herein conferred, shall not be construed as a waiver
of such terms, conditions, rights or privileges, but same shall
continue to remain in full force and effect. Any waiver by any
party of any violation of, reach of or default under any provision
of this Agreement shall be in writing, and unless such written
waiver otherwise specifically stipulates, shall not be construed
as, or constitute, a continuing waiver of such provision, or waiver
of any other violation of, breach of or default under any other
provision of this Agreement.
21.
Non-Exclusive Agreement.
Nothing in this Agreement shall prohibit Millstone from performing
like or similar services for any other person or
entity.
22.
Headings. Section headings in
this Agreement included only as a matter of convenience for
reference only and shall not be given any effect in construing this
Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date set forth below by their respective duly
authorized representatives.
Accepted
and Agreed to:
|
|
Dynatronics
Corporation
|
|
|
Millstone
Medical Outsourcing, LLC
|
|
By:
|
/s/
Brian Baker
|
|
By:
|
/s/
Karl Neuberger
|
|
Name:
|
Brian
Baker
|
|
Name:
|
Karl
Neuberger
|
|
Title:
|
President
& CEO
|
|
Title:
|
Chief
Executive Officer
|
|
Date:
|
July 8,
2020
|
|
Date:
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July 8, 2020
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8