PRODUCT SUPPLIER AGREEMENT between 340B Prime Vendor Program and
Exhibit
10.3
between
340B
Prime Vendor Program
and
EarlyDETECT
Inc.
340B
PRIME VENDOR PROGRAM
THIS
PRODUCT SUPPLIER AGREEMENT (this
"Agreement") is made and entered effective
the 3 day
of January 2007 (the
"Effective Date"), by and between HealthCare
Purchasing Partners International, LLC,
(herein referred to as "HPPI"), a Delaware
corporation. having a principal place of business at ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. on behalf of the 340B
Prime Vendor Program, (herein
referred to as 340B PVP)
that
is managed by HPPI, and Ear1yDETECT Inc, a Nevada Corporation ("Supplier").
HPPI
and
Supplier are sometimes referred to herein individually as a "Party" and
collectively as the "Parties."
WHEREAS,
340B
PVP is engaged in providing purchasing opportunities with respect to high
quality products and services to health care providers (each a "Participant"
and
collectively, the "Participants") registered as active "Covered Entities"
through Health Resources & Services Administration's
Office of Pharmacy Affairs 340B Drug Pricing Program, and entitled to
participate
in the 340B Prime Vendor Program. WHEREAS,
a list
of Participants is maintained
by HPPI in an electronic database (the "HPPI Database");
WHEREAS,
a list
of Participants is maintained by the 340B PVP in an electronic database
(the "340B PVP Participant Database");
WHEREAS,
Supplier is the manufacturer and/or supplier (as appropriate) of the products
and services listed on Exhibit
A hereto
(collectively, the "Products"); the provider of related installation,
training and maintenance services for the Products; and the provider of any
specifications
attached hereto as Exhibit
B ("Non-Price
Specifications");
WHEREAS,
HPPI
and Supplier wish for Supplier to make the Products available for purchase
by Participants directly from Supplier at the prices contained in Exhibit
A.
NOW,
THEREFORE, in
consideration of the mutual covenants and conditions hereinafter
expressed, HPPI and Supplier agree as follows:
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1.
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Exclusive
Agent; Limited Liability. In
entering into this Agreement, HPPI is acting as an
agent for the Participants and shall not be responsible or liable
for the
actions, inactions,
or obligations of any Participant, including, but not limited to,
the
breach of any
purchasing commitment or the failure to pay for any
Products.
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2.
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Authorized
Distributors. HPPI
has entered into arrangements with certain distributors ("Authorized
Distributors") that have agreed to distribute the Products to
Participating Covered
Entities. A current listing of Authorized Distributors is maintained
by
HPPI in the HPPI Database. A distributor will become an "Authorized
Distributor" for purposes of
this Agreement at the time HPPI adds the distributor to the HPPI
Database
and will cease
to be an "Authorized Distributor" for such purposes at the time HPPI
deletes the distributor
from the HPPI Database. Any limitations on the scope of an Authorized
Distributor's
authority will also be set forth in the HPPI Database. By reason
of requirements
of law, regulation or internal policy of certain Participating Covered
Entities, from time to time HPPI may identify historically underutilized
businesses (HUBS)
as Authorized Distributors.
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3.
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Basic
Terms.
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In
General. By
executing this Agreement, HPPI and Supplier agree that Supplier will
make
the Products available for purchase by the Participants directly
from
Supplier at the prices contained in Exhibit
A, for
the Initial Term and any Renewal Terms (as defined herein). Unless
otherwise stated, all Products shall be new.
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Purchasing
Commitments. This
Agreement shall not constitute a commitment by any Participant (or
other
person) to purchase any of the Products from or through Supplier.
Supplier
shall not require any Participant to purchase any specific quantity
(other
than the smallest available unit) or combination of Products, or
impose
any other purchasing commitment on a Participant as a condition to
the
Participant's purchase of any Products pursuant to this
Agreement.
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Participant
Access to Agreement. Supplier
shall not restrict any Participant's ability to purchase
any of the Products from or through Supplier pursuant to this Agreement
based on
such Participant's primary group purchasing organization
designation.
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Performance
Reviews. Representatives
of the parties shall meet on a quarterly basis in person
or by phone to review each party's performance during,
the past quarter, and to discuss
objectives and plans for the upcoming quarter.
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4.
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Term
and Termination.
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A. Term.
This Agreement shall have an initial term of three (3) years,
beginning,
on the
Effective Date (the "Initial Term"). In HPPI's sole discretion, the
Initial Term may be renewed
for up to two (2) additional one-year terms (each, a "Renewal Term").
In
the event
that HPPI opts to renew the Initial Term, then the Parties shall
execute a
written agreement
to that effect. The Initial Term and any Renewal Terms are referred
to
collectively
herein as the "Term."
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B. Termination.
Except as otherwise specifically provided herein, either Party may
terminate
this Agreement at any time for any reason whatsoever by delivering
not
less than
ninety (90) days' prior written notice thereof to the other Party.
In
addition, either Party
may terminate this Agreement immediately by delivering written notice
thereof to the
other Party upon the occurrence of either of the following
events:
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(1) The
other party
breaches this Agreement and does not cure such breach within
thirty (30) days of receiving notice of such breach; provided, however,
that no cure period shall be permitted for Supplier's breach of its
financial obligations hereunder or breach of any Legal Requirement
(as
defined herein); or
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(2) The
other Party
becomes bankrupt or insolvent, makes an unauthorized assignment,
goes into liquidation, has proceedings initiated against it for the
purpose
of seeking a receiving order or winding up order, or applies to the
courts
for protection from its creditors.
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C. Non-Payment
or Insolvency of a Participant. In
the event that a Participant fails to pay
Supplier for Products, becomes bankrupt or insolvent, makes an assignment
for the benefit of creditors or goes into liquidation, or if proceedings
are initiated for the purpose of
having a receiving order or winding up order made against a Participant,
or if a Participant
applies to the courts for protection from its creditors, then this
Agreement shall
not terminate, but Supplier shall have the right, upon prior written
notice to HPPI and
the Participant, to discontinue the sale of Products to that
Participant.
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5.
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Product
Supply.
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A. Delivery
and Invoicing. On
and after the Effective Date, Supplier agrees to promptly
deliver Products ordered by Participants to Participants, FOB destination,
and shall
direct its invoices to the ordering organization
in accordance with this Agreement. Payment terms are 2%-30. Net 31
days.
Supplier agrees to ship FOB destination/▇▇▇▇ third party
via the carrier of the relevant Participant's choice when Products
are
shipped directly
to that Participant and the Participant is absorbing the charges
for
transporting the Products. In that event, Supplier agrees to enter
the
Participant purchase order number in the customer reference field
of the
▇▇▇▇▇▇▇ ▇▇▇▇ of lading.
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B. Return
or Recall of Products. Any
Participant, in addition to and not in limitation of
any other rights and remedies, shall have the right to return Products
to
Supplier, in accordance
with Supplier's return goods policy attached hereto as Exhibit
C
and as agreed
to by HPPI. In addition, Supplier shall reimburse Participants for
any
cost associated
with any Product corrective action, withdrawal or recall requested
by
Supplier or
required by any governmental entity including all reasonable costs
in
excess of the prices
contained in Exhibit
A
plus any other damages which Participants may incur. In the
event a product recall or a court action impacting supply occurs,
Supplier
shall notify HPPI in writing within twenty-four (24) hours of any
such
recall or action. Supplier's obligations in this Subsection shall
survive
the expiration or earlier termination of this
Agreement.
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C. Pricing;
Notification of Changes in Pricing Terms. Prices
contained in Exhibit
A
of
this Agreement will remain firm for the Initial Term but may be subject
to
reduction due
to market conditions. Prices contained in Exhibit
A
will remain firm for any Renewal
Terms unless noted otherwise but may be subject to reduction due
to market
conditions.
Supplier shall provide not less than thirty (30) days' prior written
notice to HPPI
of any change in pricing terms (such as list prices, discounts or
pricing
tiers or schedules), provided such change is permitted or required
by this
Agreement.
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6.
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Product
Quality. Supplier
warrants the Products against defects in material, workmanship,
design and manufacturing. Supplier shall make all necessary arrangements
to
assign such warranty to the Participants. Supplier further represents
and
warrants that the
Products shall conform to the specifications, drawings and samples
furnished by Supplier
or contained in the Non-Price Specifications and shall be safe for
their
intended use. If any Products are defective and a claim is made by
a
Participant or an Authorized Distributor
on account of such defect, Supplier shall, at the option of the
Participant or the
Authorized Distributor, either replace the defective Products or
credit
the Participant or
the Authorized Distributor. Supplier shall bear all costs of returning
and
replacing the defective
Products, as well as all risk of loss or damage to the defective
Products
from and
after the time they leave the physical possession of the Participant
or
the Authorized Distributor.
The warranties contained in this Subsection shall survive any inspection,
delivery,
acceptance or payment by a Participant or an Authorized Distributor.
In
addition,
if there is at any time widespread failure of the Products, the
Participant or the Authorized
Distributor may return all said Products for credit or replacement,
at its
option.
This Subsection and the obligations contained herein shall survive
the
expiration or
earlier termination of this Agreement. The remedies set forth in
this
Subsection are in addition
to, and not a limitation on, any other rights or remedies that may
be
available against
Supplier.
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7.
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New
Technology.
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A. During the
Term, Supplier shall disclose to HPPI new technology developed by
Supplier
that provides the same function as the Products. Upon introduction
of the
new technology by Supplier, each Participant shall have the option
of
exchanging any Product purchased hereunder for the new technology,
upon
the terms and conditions set forth in Supplier's
return policy or other applicable policy, attached hereto as Exhibit
C. In
the event
Supplier fails to provide such option to Participants, (a) HPPI shall
have
the right to discontinue the offering of any or all of the Products
that
have been superceded by such new technology providing the same function
as
the Products, or (b) HPPI may elect at its discretion to negotiate
or
contract with one or more additional suppliers of similar new technology.
Participant pricing will not be adversely affected if Participant
chooses
to purchase new technology through a HPPI agreement with another
supplier.
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B. If
at any time
during the Term, new technology for a Product becomes available from
any
source that provides incremental patient care benefits and/or incremental
safety benefits over technology currently available under this Agreement,
HPPI shall provide written
notice of such information to Supplier and may elect to negotiate
or
contract with a
supplier of such new technology, or terminate the Agreement and re-bid
the
category so Participants
have access to such new technology at all times. Such action shall
not
constitute
a breach of this Agreement by HPPI.
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8.
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Reports
and Other Information Requirements. Supplier
shall provide to HPPI by the fifteenth (15th) day of each month for
the
preceding month during the Term ("Reporting Month"),
a report in the form attached hereto as Exhibit
D,
and containing content reasonably
satisfactory to HPPI ("Net Sales Report). If no transactions occur
within
a relevant reporting period, a report stating that 'no transactions
occurred' is required. The Report shall contain basic elements such
as the
HIN Number (health industry number), if applicable,
and/or DEA number, 340B ID Number, Prime Vendor Number (MID number),
full name, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇, and zip code. The Report
shall
also contain for each month, a list of all contract products containing
the product name, NDC number, units sold, Fee percentage, net sales,
the
fee paid for that product, and such additional information
as HPPI may reasonably request from time to time. Failure to provide
this
report
when due is a material breach of this Agreement.
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9.
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Administrative
Fees.
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A. Calculation. Supplier
shall pay HPPI fees ("Administrative Fees") equal to 3
percent (3%) of all Net Sales (as defined herein) of the Products
sold by
Supplier to Participants under and as part of this Agreement. For
purposes
of this Section, a Net Sale will
be deemed to be "under and as part of this Agreement" regardless
of
whether the pricing
or terms of the Net Sale are those set forth in this Agreement or
are
pursuant to a formal
or informal arrangement entered into between Supplier and Participant
directly. The
Net Sale of such Products shall mean invoiced sales based on the
purchase
price, net of
returns, allowances, credits, rebates, taxes, and freight. The "Agreed
Percentage" will be
defined in the Non-Price Specifications, Exhibit B.
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B. Payment. If
Supplier elects to pay Administrative Fees via hard copy check, the
Administrative Fees shall be due no later than the thirtieth day
proceeding each calendar quarter. On or before that day, Supplier
shall
remit to HPPI the quarterly Administrative Fees for the prior quarter's
purchases. If Supplier elects to pay Administrative Fees via Electronic
Funds Transfer ("EFT"), then the Administrative Fees shall be due
no later
than
the twentieth day proceeding each calendar quarter. On or before
that day,
Supplier shall remit to HPPI the quarterly Administrative Fees for
the
prior quarter's purchases.
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Administrative
Fee hard copy checks must be made payable to HPPI, LLC and sent
to:
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If
Sent By First Class Mail:
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HPPI,
LLC.
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▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
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If
Sent Via Courier
(e.g., Federal Express, United Parcel Service,
Messenger):
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The
Northern Trust Company
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Attn
: HPPI, LLC., LockBox Number 1420
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Receipt
& Dispatch ▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
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Telephone
Number: (▇▇▇) ▇▇▇-▇▇▇▇. The air ▇▇▇▇ must list the bank's telephone
number, as recipient at this location. Supplier's telephone number,
as the
sender, must also be included.
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IMPORTANT
REMINDER: ALL
checks
for Fees should be made payable to HPPI,
LLC, regardless
of whether they are sent first-class mail or by courier. Under
no circumstances should
checks be made payable to The Northern Trust
Company.
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Account
information for Administrative Fee wire transfers is as
follows:
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Bank
Name: The Northern Trust Company, Chicago, IL
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Bank
Address: ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Routing
No: 071 000 152
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Account
Name: HPPI LLC
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Account
Number: 86665
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C. Payment
Penalties. If
payment of Administrative Fees is not received on the date such
Administrative Fees are due, any amounts past due shall be subject
to a
late charge in
the amount of the lesser of one and one-half percent (1.5%) interest
per
month or the maximum
rate allowed by law. In the event that HPPI and/or Supplier discovers
that
certain
sales of Products were not properly reported to HPPI in accordance
with
this Agreement,
Supplier shall pay the Administrative Fees related to those sales
within
fifteen
(15) days of discovering the error in reporting, together with a
late
charge in the amount
of the lesser of one and one-half percent (1.5%) interest per month
or the
maximum
rate allowed by law, calculated from the date the sales should have
been
reported
to HPPI.
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10.
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Market
Competitive Pricing and Terms.
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A. Pricing. Supplier
shall lower prices contained in Exhibit
A
or
increase any discount
applicable to the purchase of the Products as necessary to assure
340B
sub-ceiling
pricing, and, in addition, Supplier agrees to lower the prices contained
in Exhibit
A
or
increase any discount applicable to the purchase of the Products
for
Participants in the
event Supplier offers a lower price to any competitor of such Participant
or group of Participants.
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B. Non-Price
Terms. Supplier
shall improve non-price terms, such as quality, technology
or other non-price financial value as necessary to assure market
competitiveness,
and, in addition, Supplier agrees to adjust non-price terms for
Participants
in the event Supplier offers more favorable non-price terms to any
competitor of such Participants.
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C. Response
Duration. If
at any time during the Term, HPPI receives information from
any source that indicates Supplier's pricing or non-price terms are
not
market competitive, HPPI may provide written notice of such information
to
Supplier, and Supplier
shall within ten (10) business days for all other Products, advise
HPPI in
writing of
all adjustments necessary to assure market competitiveness. Such
adjustments will become
effective no later than ten (10) days after Supplier's written
notice.
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D. Lowest
Prices. The
prices charged for each product and service sold under this Agreement
during its term shall be no greater than the lowest price charged
by
Company to
its other customers under similar terms, conditions, and aggregate
purchase volumes. Company will promptly provide HPPI with written
notice
of any applicable comparable lower
prices available from Company, and this Agreement shall be automatically
amended
to include such lower pricing.
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11.
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Minority,
Women or Veteran Owned Business Enterprises. HPPI
may be required by law,
regulation and/or internal policy to do business with certain minority
or
women owned
businesses ("MWBEs"). Supplier shall assist HPPI in meeting these
requirements by
complying with all HPPI policies and programs with respect to such
businesses. HPPI,
in its discretion, may make an award or negotiate another agreement
with a
MWBE in
addition to any sole, multi-source, or negotiated contract. Pricing
will
not be adversely affected if HPPI adds a MWBE supplier to the product
category.
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12.
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Information
to Participants and Authorized
Distributors.
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A. Participant
Notification. Within
thirty (30) days following the Effective Date, HPPI
shall deliver a summary of this Agreement to each Participant. Such
information may
be furnished, as appropriate, through the use of direct mail and/or
electronic mail and regional
and national meetings and conferences. As appropriate, HPPI shall
involve
Supplier in these activities by inviting Supplier to participate
in
meetings and other activities
with Participants. At the request of Supplier from time to time,
and in
HPPI's sole
discretion, HPPI also shall deliver to each Participant reasonable
and
appropriate amounts and types of materials supplied by Supplier to
HPPI
that relate to the purchase of Products.
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B. List
of Participants for Supplier. On
the Effective Date, HPPI shall assign Supplier
a code/password to access the HPPI membership list on its secured
website
or shall
provide a list of HPPI Participants to Supplier. This membership
information shall be
considered "Confidential Information" of HPPI and is subject to the
non-disclosure requirements set forth in Section 16 of this
Agreement.
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C. HPPI
Support Activities. HPPI
shall engage in administrative and support activities,
including but not limited to including Supplier on HPPI's list of
authorized suppliers, publicizing the availability of this Agreement
and
distributing Product and /or Service
information. HPPI agrees to promote the Products and/or Services
as
outlined in a
mutually agreed upon plan that will be developed in conjunction with
Supplier within sixty (60) days after the Effective Date of this
Agreement.
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13.
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Compliance
With Law and Government Program
Participation.
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A. Compliance
With Law. Each
Party represents and warrants that to the best of its knowledge,
after due inquiry, it is, and for the Term shall be, in compliance
with
all federal
and state statutes, laws, ordinances and regulations that are material
to
the operation
of its business and the conduct of its affairs ("Legal Requirements"),
including, but
not limited to, Legal Requirements pertaining to the safety of the
Products, occupational
health and safety, environmental protection, nondiscrimination, antitrust,
health
care regulatory, and equal employment opportunity.
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B. Notification
of Claims. During
the Term, Supplier shall promptly notify HPPI of any lawsuits, claims,
administrative actions or other proceedings asserted or commenced
against
it that assert, in whole or in part, that Supplier is in noncompliance
with any Legal Requirement.
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D. Government
Program Participation. Each
Party represents and warrants that it is not (1) excluded from
participating in any "Federal health care program" as that phrase
is
defined in 42 U.S.C. § 1320a-7b(f) ("Excluded"), or (2) debarred,
suspended, declared ineligible, or voluntarily excluded by any Federal
department or agency (collectively, "Debarred"). In the event that
a
Party, during the Term of this Agreement, is Excluded or Debarred,
that Party (the "Excluded Party") shall notify the other Party (the
"Non-Excluded
Party") in writing within three (3) days after such event. Upon the
occurrence of
such event, whether or not notice is given to the Non-Excluded Party,
the
Non-Excluded
Party may terminate this Agreement immediately upon written notice
to the
Excluded Party.
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D. HPPI
Participant Discount Reporting. With
respect to any price reduction (e.g.,
discount, rebate, credit or any other form of remuneration) that
is
provided by Supplier to any
HPPI Participant, Supplier agrees that it shall (1) fully and accurately
report such price
reduction on the invoices or statements it furnishes to the HPPI
Participant, (2) inform
the HPPI Participant in a manner reasonably calculated to give notice
to
the HPPI Participant
of its obligations to report (and provide information about) such
price
reduction
to the appropriate government authorities (e.g.,
in
HPPI Participant's cost reports)
and (3) refrain from doing anything that would impede the HPPI Participant
from meeting its reporting and disclosure obligations under 42 C.F.R.
§
1001.952(h)(1).
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14.
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Insurance.
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A. Policy
Requirements. Supplier
shall maintain and keep in force during the Term commercial general
liability insurance that includes the products-completed operations
hazard.
Such insurance shall contain a minimum combined single limit of liability
for bodily injury and property damage in the amount of not less than
$2,000,000 per occurrence
and $10,000,000 in the aggregate and shall name HPPI, the Clients
and the
Participants,
as their interests may appear, as additional insureds. The liability
limits may be
satisfied through a combination of primary and excess policies including
deductibles or
self-insured retentions. Supplier shall provide a certificate of
insurance
to HPPI within thirty (30) days following HPPI's request, indicating
the
foregoing coverage, issued by an insurer licensed to do business
in the
relevant states; provided, however, that Supplier may
provide an insurance certificate issued by an insurer not licensed
to do
business in the
relevant states, provided that such insurer has an A.M. Best rating
of A-7
or greater.
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B. Self-Insurance. Notwithstanding
anything to the contrary in Section A.A. above, Supplier may maintain
a
self-insurance program for all or any part of the foregoing liability
risks, provided that such self-insurance complies with the requirements
set forth in Section A.A. above.
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C. Amendments,
Notices and Endorsements. Supplier
shall not amend, in any material
respect that affects the interests of HPPI, the Clients, certain
of
Clients' subsidiaries and affiliates, or the Participants, or terminate
said insurance or self-insurance
program except after providing thirty (30) days' prior written notice
to
HPPI.. In the event that Supplier amends said liability insurance
or
self-insurance program in accordance with this Section A.C., Supplier
shall provide HPPI with copies of all notices and endorsements as
soon as
practicable after Supplier receives or gives them.
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15.
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Release
and Indemnity.
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A. In
General. SUPPLIER
SHALL RELEASE, INDEMNIFY, HOLD HARMLESS, AND, IF
REQUESTED, DEFEND HPPI AND THE PARTICIPANTS, AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, REGENTS, AGENTS, SUBSIDIARIES, AFFILIATES AND
EMPLOYEES
(COLLECTIVELY, THE "INDEMNITEES"), FROM AND AGAINST ANY CLAIMS,
LIABILITIES, DAMAGES, ACTIONS, COSTS AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS' FEES AND EXPENSES, EXPERT FEES
AND COURT COSTS) OF ANY KIND OR NATURE, WHETHER AT LAW OR IN EQUITY,
ARISING FROM OR CAUSED IN ANY PART BY (1) THE BREACH OF ANY REPRESENTATION,
WARRANTY, COVENANT OR AGREEMENT OF SUPPLIER CONTAINED
IN THIS AGREEMENT; (2) THE CONDITION OF ANY PRODUCT CAUSED BY
THE ACTIONS OR OMISSIONS OF SUPPLIER, INCLUDING, WITHOUT LIMITATION,
IMPROPER STORAGE OF ANY PRODUCT, OR ANY DEFECT IN MATERIAL,
WORKMANSHIP, DESIGN OR MANUFACTURING; OR (3) THE WARNINGS AND INSTRUCTIONS
ASSOCIATED WITH ANY PRODUCT. SUCH INDEMNIFICATION, HOLD HARMLESS
AND RIGHT
TO DEFENSE SHALL NOT BE APPLICABLE TO THE EXTENT
THE CLAIM, LIABILITY, DAMAGE, ACTION, COST OR EXPENSE ARISES AS
A
RESULT OF AN ACT OR FAILURE TO ACT OF
INDEMNITEES.
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9
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|
B. Intellectual
Property. IN
ADDITION, SUPPLIER REPRESENTS AND WARRANTS THAT
SALE OR USE OF THE PRODUCTS SHALL NOT INFRINGE ANY UNITED STATES
PATENT, COPYRIGHT OR TRADEMARK AND SHALL, AT ITS OWN EXPENSE, DEFEND
EVERY SUIT WHICH SHALL BE BROUGHT AGAINST HPPI OR A PARTICIPANT
FOR ANY ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT OR
TRADEMARK BY REASON OF THE SALE OR USE OF THE PRODUCTS AND SHALL
PAY ALL
COSTS, DAMAGES AND PROFITS RECOVERABLE IN ANY SUCH
SUIT.
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C. Survival. THIS
SECTION ERROR!
REFERENCE SOURCE NOT FOUND. AND
THE
OBLIGATIONS CONTAINED HEREIN SHALL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS AGREEMENT. THE REMEDIES SET FORTH IN THIS SECTION
ARE IN ADDITION TO AND NOT A LIMITATION ON ANY OTHER RIGHTS OR
REMEDIES THAT MAY BE AVAILABLE AGAINST SUPPLIER.
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16.
|
Books
and Records. Supplier
shall keep, maintain and preserve complete, current and accurate
books,
records and accounts of the transactions contemplated by this Agreement
and such additional books, records and accounts as are necessary
to
establish and verify Supplier's
compliance with this Agreement. All such books, records and accounts
shall
be
available for inspection and audit by HPPI representatives at any
time
during the Term and for two (2) years thereafter, but only during
reasonable business hours and upon reasonable
notice. HPPI agrees that its routine audits shall not be conducted
more
frequently
than twice in any consecutive twelve (12) month period, subject to
HPPI's
right
to conduct special audits whenever it deems it to be necessary. The
exercise by HPPI
of the right to inspect and audit Supplier's books and records is
without
prejudice to any other or additional rights or remedies of either
Party.
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17.
|
Confidential
Information.
|
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A. Nondisclosure. Supplier
agrees that, during the term of this Agreement and following the
expiration or termination of this Agreement for any reason, it
shall:
|
|
|
(1) Keep
strictly
confidential and hold in trust all Confidential Information, as
defined
in Section O.B. below, of HPPI and the Participants;
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(2) Not
use the
Confidential Information for any purpose other than the performance
of its obligations under this Agreement, without the prior written
consent
of HPPI;
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(3) Not
disclose the
Confidential Information to any third party (unless required
by law) without the prior written consent of HPPI; and
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|
(4) Not
later than
thirty (30) days after the expiration or earlier termination of
this
Agreement, return to HPPI or the Participant, as the case may be,
the
Confidential Information.
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10
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|
B. Definition. "Confidential
Information," as used in Section 0.A. above, shall consist
of the terms of this Agreement, and all information relating to the
prices
and usage
of the Products (including all information contained in the reports
produced by Supplier pursuant to Section 0 above) and all documents
and
other materials of HPPI and the
Participants containing information relating to the programs of HPPI
or
the Participants
of a proprietary or sensitive nature not readily available through
sources
in the
public domain. In no event shall Supplier provide to any person any
information relating
to the prices it charges the Participants for Products ordered pursuant
to
this Agreement without HPPI's prior written consent.
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C. Remedies. The
Parties acknowledge that, in the event of a violation of any restrictions
set forth in Section 0.A. above, or in the event such a violation
is
likely to occur,
HPPI shall be entitled to preliminary and permanent injunctive relief
without having
to prove actual damages or immediate or irreparable harm or post
a bond.
Notwithstanding
the foregoing, if the restrictions contained herein are judged
unreasonable
by any court of competent jurisdiction, the Parties agree to the
reformation of
such restrictions by the court to limits that may reasonably grant
HPPI
the maximum protection
permitted by applicable law in such circumstances, and Supplier shall
not
assert
that such restrictions should be eliminated in their entirety by
such
court.
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D. HIPAA. To
the extent that Supplier is or becomes subject to, directly or
indirectly,
the privacy and security rules promulgated pursuant to the Health
Insurance Portability
and Accountability Act of 1996 ("HIPAA"), codified at 45 C.F.R. Parts
160
and
164, and/or other relevant administrative simplification rules promulgated
pursuant to HIPAA, then Supplier shall comply with such rules and,
upon
HPPI's request, shall agree to amend this Agreement accordingly and/or
enter into any additional agreement between or among Supplier, HPPI
and/or
any Participant, as appropriate.
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E. Use
of Names, etc. Supplier
agrees that it shall not use in any way in its promotional,
informational or marketing activities or materials (i) the names,
trademarks, logos, symbols or a description of the business or activities
of HPPI or any Participant without
in each instance obtaining the prior written consent of the person
owning
the rights
thereto; or (ii) the existence or the content of this Agreement without
in
each instance
obtaining the prior written consent of HPPI.
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18.
|
Miscellaneous.
|
|
|
A. Third
Party Beneficiary. All
Participants are intended third party beneficiaries of this
Agreement.
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|
B. Choice
of Law. This
Agreement shall be governed by and construed in accordance
with the internal substantive laws of the State of Texas and the
Texas
courts shall have jurisdiction over all matters relating to this
Agreement. Notwithstanding the above,
Participants are not subject to Texas law or the jurisdiction of
Texas
courts by virtue
of this Agreement and any disputes between Participants and Suppliers
will
be governed by and construed in accordance with the choice of law
and
venue provisions set forth
in any agreement between Participant and Supplier or the laws of
the state
of Participant's
principal place of business if Participant and Supplier have no separate
agreement or if choice of law and venue are not addressed in such
agreement.
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11
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C. No
Assignment. This
Agreement may not be assigned in whole or in part by either
Party without the prior written consent of the other Party; provided,
however, that HPPI may assign its rights and obligations to any affiliate
of HPPI. Any assignment of all or
any part of this Agreement by either Party shall not relieve that
Party of
the responsibility
for performing its obligations hereunder to the extent that such
obligations are not satisfied in full by the assignee.
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D. Binding
Effect. This
Agreement shall be binding upon, inure to the benefit of, and
be enforceable by the Parties and Participants, as well as their
respective successors and assigns.
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E. Notices. Except
as otherwise expressly provided herein, all notices or other
communications required or permitted under this Agreement shall be
in
writing and shall be
deemed sufficient when mailed by United States mail, or delivered
in
person to the Party
to which it is to be given, at the address of such party set forth
below,
or to such other
address as the Party shall have furnished in writing in accordance
with
the provisions
of this Section:
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If
to Supplier:
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[Insert
Address]
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If
to HPPI:
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HPPI,
LLC
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Attn:
General Counsel
|
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▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
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|
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
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With
a copy to:
|
|
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Attn:
▇▇▇▇ ▇▇▇▇▇▇▇
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340B
Prime Vendor Program
|
|
|
▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
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F. Severability. Whenever
possible, each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable law.
However, in
the event that any provision of this Agreement becomes prohibited
or
invalid under applicable law, or is otherwise held unenforceable,
then
such provision, upon the mutual agreement of the Parties, shall be
modified to reflect the Parties' intent, consistent with applicable
law.
The Parties shall work together in good faith in an effort to agree
on an
appropriate
modification within a commercially reasonable period of time. Absent
such
agreement,
such provision shall be ineffective to the extent of such prohibition
or
invalidity
without invalidating the remainder of such provision or the remaining
provisions
of this Agreement.
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12
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G. Independent
Contractors. It
is expressly understood and agreed that HPPI and Supplier
shall at all times be independent contractors of one another. It
is
expressly understood
and agreed by the Parties that nothing contained in this Agreement
shall
be construed
to create a joint venture, partnership, association or like relationship
between the
Parties with respect to the subject matter hereof. In no event shall
either Party be liable
for the debts or obligations of the other Party.
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H. Entire
Agreement. This
Agreement, together with the exhibits listed below, shall constitute
the entire agreement between HPPI and Supplier. In the event of any
inconsistency
between this Agreement and any one or more of the exhibits hereto,
the
terms
of this Agreement shall control. No other terms and conditions in
any
document, acceptance, or acknowledgment shall be effective or binding
unless expressly agreed to in writing. The following exhibits are
incorporated by reference in this Agreement:
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Exhibit
A Product and
Service Description and Pricing
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Exhibit
B Non-Price
Specifications
|
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Exhibit
C Supplier Return
Policy
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Exhibit
D Form of Net
Sales Report
|
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their
duly authorized officers as of the day and year first above
written.
|
HPPI
|
[SUPPLIER]
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By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇
|
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
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|
Name:
▇▇▇▇▇▇▇
▇▇▇▇
|
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
Title:
VP,
Operations
|
Title:
CEO/President
|
|
Date:
1/29/07
|
Date:
1/3/07
|
13
EXHIBIT
A
PRODUCT
AND SERVICE DESCRIPTION AND PRICING
[Final
listing of products and/or services and prices covered by the
Agreement]
EXHIBIT
B
NON-PRICE
SPECIFICATIONS
AGREEMENT
TERM:
Effective
Date: February 15,
2007
End
Date:
February 28, 2010
RENEWAL
OPTIONS: Two
additional one year renewal Terms
FEES:
Agreed
Percentage: 3% of Net Purchases
EXHIBIT
C
SUPPLIER'S
RETURN POLICY
FORM
OF NET SALES REPORT
EXHIBIT
D
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Contract
Compliance &
Research
|
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▇▇▇▇▇
▇▇▇▇▇▇▇
|
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Manager,
Contract Administration
|
SEND
REPORTS TO:
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▇▇▇-▇▇▇-▇▇▇▇
|
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
Contract
ID
|
Month
|
Hospital
LIC
|
Hospital
Name
|
Street
Address
|
City
|
State
|
Sales
|
Revenue
Rate
|
Revenue
|
|
MS20050
|
Jun-03
|
JKIU
|
ABC
Hospital
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
|
▇▇▇▇▇▇
|
▇▇
|
10,000.00
|
0.03
|
300
|
|
MS20050
|
▇▇▇-▇▇
|
▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇▇▇▇
|
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
|
Abilene
|
TX
|
5,000.00
|
0.03
|
150
|
|
Totals:
|
15,000.00
|
450
|
Administrative
fee checks must be made payable to HPPI, LLC and sent to:
|
If
sent by First Class Mail:
|
If
sent via courier (FedEx, UPS, Messenger)
|
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HPPI,
LLC
|
The
Northern Trust Company
|
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▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
|
Receipt
& Dispatch ▇▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
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Attn:
HPPI, LLC, Lockbox Number 1420
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Telephone
No. ▇▇▇-▇▇▇-▇▇▇▇
|
Questions
on payments:
▇▇▇▇
▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
|
FDA
510K APPROVAL LIST
FOR
PROFESSIONAL USE
|
|
|
Description
|
510K
No.
|
|
Pregnancy
Dipstick Test
|
K961099
|
|
Pregnancy
Cassette Test
|
K912316
|
|
Pregnancy
Wand Test
|
K963341
|
|
Ovulation
Cassette
|
K951538
|
|
Ovulation
Wand Test
|
K012252
|
|
Menopause
Cassette
|
K043599
|
|
Menopause
Wand Test
|
K030058
|
|
Cholesterol
Card Test
|
K905405
|
|
Glucose
Cassette Fasting Test
|
K943503
|
|
Strep
A Swab Cassette Test
|
K031784
|
|
H-pylori
Cassette Test
|
K024350
|
|
Mononucleosis
Cassette Test
|
K042272
|
|
Drugs
of Abuse 6 Panel Dipstick
|
K050050
|
|
Drugs
of Abuse 10 Panel Dipstick
|
K041685
|
|
Colon
Screening Tissue Test
|
K860028
|
|
Fecal
Occult Blood Cassette Test
|
K041202
|
|
FDA
510K APPROVAL LIST
FOR
OVER-THE-COUNTER (OTC) USE
|
|
|
Description
|
510K
No.
|
|
OTC
Pregnancy 1 Test Kit - Wand
|
K963341
|
|
OTC
Pregnancy 2 Test Kit - Wand
|
K963341
|
|
OTC
Ovulation 5 Test Kit - Wand
|
K983113
|
|
OTC
Menopause 2 Test Kit - Wand
|
K030058
|
|
OTC
Colorectal 1 Test Kit - Tissue
|
K860028
|
|
OTC
Glucose 2 Test Kit - Card
|
K943503
|
|
OTC
Cholesterol ▇ ▇▇▇▇ ▇▇▇ - ▇▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇
|
|
OTC
Urinary Tract Infection 3 T/Kit - Dipstick
|
K990873
|
|
OTC
Blood Alcohol 3 Test Kit - Dipstick
|
Not
Applicable
|
|
OTC
Breast Self-Exam Kit - Pad
|
Not
Applicable
|
|
OTC
DNA Paternity Test Kit - Swab
|
Not
Applicable
|