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CERTAIN CONFIDENTIAL MATERIAL CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO 17
C.F.R. SUBSECTIONS 200.80(B)(4), AND 230.406.**
[*] indicates redacted text.
SUPPLY AGREEMENT
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THIS AGREEMENT made as of the 16 day of July, 1998, by and between
Medsite Publishing, Inc, a Delaware Corporation, with principal offices at 00
Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 (hereinafter "Company") and
Xxxxxxxx Medical Books, a Missouri corporation, with principal offices at 00000
Xxxx Xxxxxx Xx., Xxxxxxxx Xxxxxxx, XX 00000, (hereinafter "Supplier"),
WITNESSETH
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WHEREAS, Supplier is engaged in the sale and distribution of medical
books and electronic media products, (hereinafter the "Products") and medical
supplies and equipment, (hereinafter the "Supplies"); and
WHEREAS, the Company desires to secure a continuing source of supply of
the Products and Supplies; and
WHEREAS, the parties desire to establish the terms and conditions upon
which Supplier will provide the Products and Supplies to the Company, and upon
which the Company will accept and pay for the Products and Supplies, on or after
the date of this Agreement;
NOW, THEREFORE, in consideration of and in reliance upon mutual
covenants, agreements and conditions hereinafter set forth, the parties hereto
agree as follows:
1. Supply:
1.1 During the terms of this Agreement, Supplier shall supply to
the Company, and the Company shall purchase from Supplier, the Products and
Supplies in the quantities set forth in written purchase orders delivered to
Supplier by Company and indicating the desired quantity of the Products or
Supplies, delivery dates and destinations. The Company shall be responsible for
ensuring the accuracy of information contained on the purchase orders sent to
the Supplier. All materials will be shipped [*] origin. Products and Supplies
that are undeliverable due to incorrect information contained in the purchase
order are the responsibility of [*]. Products and Supplies that are
undeliverable due to an error on the part of the Supplier are the responsibility
of the Supplier.
Supplier will use its commercial best efforts to ship the Products
or Supplies within 24 hours of receipt of [*] or an equivalent agreed upon
format for electronic orders, or at such later date as may be requested by the
Company. Certain business occurrences (e.g. publisher out-of-stock) may cause
shipping times to be longer. Additionally, if the Company is unable to transmit
the purchase orders in [*] format, the Company may provide the Supplier written
or email purchase orders. Written or email orders must be manually processed.
Manual processing may cause delays in shipping.
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1.2 The Supplier will provide an electronic confirmation of all
orders received. Thirty days from the signing of this agreement the Supplier
agrees to provide confirmation of shipping and tracking information (for those
carriers that provide automated tracking information) for all orders received by
the Supplier within [*] hours of receipt of the purchase order related thereto.
The Supplier will provide this information electronically in a mutually
agreeable format. The Supplier will use its commercial best efforts to provide
the Company an electronic confirmation on all orders that are not in stock,
Backorder status, along with an estimated date of delivery as available from the
publishers to the Company within [*] hours of receipt of the purchase order
related thereto.
1.3 The Supplier and the Company will use their respective
commercial best effort to create systems to place orders, receive purchase order
acknowledgments, transmit and receive invoices, receive shipping and tracking
information, and receive Product and Supplies information. [*] is the intended
format for purchase orders, purchase order acknowledgement, and invoices. The
Company and Supplier will agree upon the transmission vehicle (ftp, email, etc.)
for sending [*] formatted documents or an equivalent agreed upon electronic
format.
2. Price; Payment: The prices to be paid by the Company to
Supplier for the Products and Supplies shall be in US Dollars. The prices shall
be set forth by the Supplier in electronic format in its database of Products
and Supplies as described in Section 3 below. Generally, the Supplier receives a
discount from publisher's list price on Products ("Supplier's Discount"). [*]
the Company will pay the Supplier according to the Discount Schedule below. The
discount codes for each product will be transmitted to the Company in the
database (section 3).
DISCOUNT SCHEDULE
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CODE DISCOUNT
---- --------
[*]
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[*] indicates redacted text.
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DISCOUNT SCHEDULE
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CODE DISCOUNT
---- --------
[*]
There will be a distribution fee of [*] per shipment for
Products and Supplies ordered from the Supplier by the Company. Thirty days from
the signing of this agreement, for written or email purchase orders (not in
BISAC format), there will be a processing fee of [*] per order for input of
the order into the Supplier's system. If the Company inputs the orders, the
order processing fee will be waived. The Supplier will make available to the
Company access to the Suppliers system for purpose of the Company inputting
orders. For shipping and tracking information, if the Company is unable to
accept an electronic file, there is a [*] per shipment. If the Company is
unable to submit or receive the purchase order information or shipping and
tracking information due to the fault of the Supplier, the processing fees will
be waived by the Supplier. The Supplier will provide the Supplies at a price to
the Company as set forth on the database of Products and Supplies described in
Section 3 below. The Prices for backordered items shall be the prices in effect
on the day the order is placed. All backorders are considered valid unless
cancelled in writing.
Shipping charges, customs charges and non-deliverable charges
assessed by the carrier shall be the responsibility of [*].
2.1 The Company shall have the right at any time to maintain
a line of credit agreed upon between the Supplier and Company. The company can
maintain an outstanding balance up to or at the credit limit. Payment shall be
made in full by the Company within [*] from the date of invoice for Products
and Supplies. As the Company's credit history is established, the Supplier will
increase the Company's credit limit. Claims for shortages or damaged merchandise
must be sent to Supplier within thirty days of receipt of goods.
3. The Database: Commencing on the date hereof [*] will make the
database of Products and Supplies available to [*] in an electronic format. [*]
will provide daily updates to the database electronically, in a format that is
mutually agreeable to [*] and [*]. [*] agrees to provide the following
information for all the Products in the database; [*]. [*] will use their best
efforts to ensure that the weekly updates will include information regarding [*]
for all the categories in the weekly updates. [*] agrees to provide the
following information for [*] in the database; [*] and other material
specifications. [*] will also provide [*] a login and password for accessing
the database via telnet to allow [*] to view products information and view [*]
inventory levels. [*] grants to [*] a non-transferable, non-exclusive license to
use this database information. [*] may not copy, reproduce or redistribute this
database except with prior written consent of [*]. This
[*] indicates redacted text.
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database and associated files are provided "as is" and without warranties as to
performance of merchantability or any other warranties whether expressed or
implied. No warranty or fitness for a particular purpose is offered.
4. Customer Service: The Supplier will assign a customer service
representative to the Company. This representative will be made available to
Company during normal business hours to answer questions concerning and assist
Company with respect to, products, shipments, deliveries and returns.
The Company will be responsible for customer service to the
individuals, organizations and institutions ("Company's Customers") that
purchase from the Company. The Company is responsible for assisting the
Company's customers in purchasing product, customer issue resolution,
tracking/tracing shipments and authorizing/accepting returns.
5. Returns: All returns will be sent to [*], unless otherwise
agreed upon by both parties. [*] is responsible for return shipping. If the
return is caused by [*] error (shipment of the incorrect Product or Supply) or
defective product, [*] will assume responsibility for the return shipping and
processing. A replacement Product or Supply will be shipped to the customer by
[*] at [*] expense. For the [*], any returns other than those due to Supplier
error or defective product must be authorized in advance by the Supplier.
Defective Supplies that are subject to a manufacturer's warranty for repair or
replacement are the responsibility of [*]. Personalized Supplies are
non-returnable (The Supplier often monograms lab coats or engraves doctors'
bags). Special orders for the Supplies are non-returnable.
6. FORCE MAJEURE:
6.1 Neither party shall be liable to the other for any delay
or failure to perform any of its obligations hereunder which delay or failure
results from natural events (fire, flood, lightning, etc.), accidents
(explosion, transportation accidents, etc.), civil events (strikes, labor
disturbances, raw material and equipment shortages, etc.), or any other
contingency beyond the reasonable control of the party.
6.2 Each party hereto agrees to promptly notify the other in
the event of any force majeure, and the parties shall use their reasonable
commercial best efforts to avoid or remove any such force majeure and to resume
performing their obligations hereunder as quickly as practicable.
7. NOTICES: Notices under this Agreement shall be given in
writing and confirmed by overnight mail and shall be addressed:
In the case of the Company to:
Medsite Publishing, Inc.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
[*] indicates redacted text.
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In the case of the Supplier to:
Xxxxxxxx Medical Books
00000 Xxxx Xxxxxx Xxx. Xxx.
Xxxxxxxx Xxxx, XX 00000
8. TERMINATION FOR BREACH: Either party may terminate this
Agreement with a 60 day written notice to the other party. In the event of
either party's bankruptcy, or insolvency, or in the event of any proceedings,
voluntary or involuntary, against either party under the bankruptcy or
insolvency laws, which is not dismissed within ninety (90) days, or in the event
of either party's inability to meet its debts in the ordinary course of
business, the other party, upon providing written notice, may terminate this
Agreement with immediate effect.
9. GOVERNING LAW: The construction, validity and performance of
this Agreement shall be governed by the laws of the State of New York without
regard to conflict of law principles.
10. ARBITRATION:
10.1 If, during the term of this Agreement, any question,
dispute or difference whatsoever arises between the parties hereto upon or in
relation to or in connection with this Agreement, either party shall give to the
other party written notice of the existence of such question, dispute or
difference and shall, in good faith, communicate with the other party in a bona
fide effort to resolve the same.
11. INTEGRATION:
11.1 This Agreement sets forth the entire agreement between
the parties hereto as to the subject matter hereof, merges all discussions
between them and annuls and replaces every other contract, agreement, or letter
of understanding which may hitherto have existed between them.
11.2 The invalidity or unenforceability of any provision
under this Agreement shall not affect the validity of the remainder of this
Agreement. In such event the parties hereto will replace the invalid or
unenforceable provision by a provision which has the same economic effect.
11.3 No amendment, modification or interpretation of this
Agreement shall become effective unless made in writing and signed by the
parties hereto.
[*] indicates redacted text.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement
to be executed by duly authorized officers as of the date first above written.
For Medsite Publishing Inc., For Xxxxxxxx Medical Books, Inc.
By:/s/Xxxxxxx Xxxx By:/s/Xxxx Xxxxxxxx
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Signature Signature
Xxxxxxx Xxxx Xxxx Xxxxxxxx
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Name Name
President Vice President
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Title Title
[*] indicates redacted text.
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