EXHIBIT 10.2
PURCHASE AND PRICE AGREEMENT
THIS AGREEMENT is entered into by and between MEDgenesis Inc.
("Seller"), having its principal place of business at 0000 X. 00xx Xxxxxx,
Xxxxx, Xxxxxxxxx 00000 and Home Service Medical & Pharmacy, Inc. ("Buyer"),
whose mailing address is 00000 Xxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000.
This Agreement sets forth the terms and conditions for the sale of the
products set forth in the attached price list by Seller and the purchase of the
Products by Buyer.
1. Exclusive Purchase Terms. During the term of this Agreement, Buyer
agrees to use Seller as a source of Seller-branded blood glucose meters, urine
strips, infusion sets, and lancets according to the terms of this Agreement.
Buyer shall purchase such quantities of the Products as it desires by issuing
individual purchase orders to Seller as authorization to ship Products.
To continue receiving the pricing provided in this Agreement, Buyer
must continue to purchase a minimum of $300,000 of MEDgenesis proprietary
products annually beginning with the effective date of this Agreement. Buyer's
purchase orders shall specify the products ordered, the quantity, purchase
price, destination and method of shipment, in accordance with the terms of this
Agreement.
Purchase orders are subject to written acceptance by the Seller
according to the terms of this Agreement. No term or condition stated in the
purchase order shall add to, modify or otherwise alter the terms and conditions
of this Agreement. Buyer's shall resell the Products direct to individual
consumers only.
2. Payment Terms Payment terms for all Products ordered under this
Agreement shall be 2% 20 / Net 30 days. Buyer shall pay all invoices within 30
days of invoice date. Without affecting any other Seller remedy, Seller may
apply a late charge of one and one-half percent per month (or the maximum amount
allowed by law, if less), commencing on the date due of any past due invoice and
until paid in full.
3. Shipping Terms. All orders greater than $2500.00 shall be FOB
Destination to the Buyer's distribution centers in the continental United
States. Buyer shall not require the Seller to engage in any drop shipments of
the Products. Shipments shall be made by regular courier unless Buyer, in
writing, so requests special delivery in which case Buyer shall be responsible
for the costs of such special delivery.
4. Term of Agreement. This Agreement shall commence on the effective
date of the MEDgenesis spin-off from Chronimed Inc. and continue for a period of
three years thereafter, unless sooner terminated in accordance with the terms
hereof or by the mutual written consent of the parties (the "Term").
5. Product Delivery. Seller agrees to deliver the Products specified in
Buyer's purchase orders to Buyer's distribution centers within seven (7) working
days after receipt of the purchase order.
6. Pricing. During the term of this Agreement, the Products shall be
sold to Buyer at the prices listed on the attachment hereto, subject to Buyer
meeting the minimum purchase requirements listed in Paragraph 1 above. Seller's
invoice to Buyer shall accurately list prices for such order in accordance with
the terms of this Agreement.
7. Seller's Representations. During the Term of this Agreement, Seller
agrees to:
(a) provide and maintain a toll free customer and technical
service telephone number, and
(b) provide Buyer with product information for marketing purposes
and product samples for evaluation purposes in reasonable
quantities at no charge to Buyer.
8. Buyer's Representations. During the Term of this Agreement, Buyer
agrees to:
(a) provide monthly sales tracing reports for all customer sales,
(b) promote MEDgenesis proprietary products in product catalogs,
internal promotions and training meetings, and
(c) not re-label, modify, combine or in any other manner tamper
with any of the Products without the express written consent
of Seller.
9. Product Quality and Warranties. Seller warrants that it has good
title to the Products sold to Buyer and the Products are free and clear from all
liens and encumbrances. No substitution of Products may be made by Seller
without the express written consent of Buyer. Seller warrants that the Products
are free from defects in material and workmanship at the time of shipment from
Seller's facility. Seller further warrants that the Products will, as of the
date of shipment by Seller, be properly manufactured, processed, blended,
branded and labeled within the meaning of the federal Food, Drug and Cosmetic
Act, and therefore may be introduced into interstate commerce. Seller's
obligations under this limited warranty are limited to replacement of the
Product. Buyer must notify Seller within 30 days of physical receipt of the
Product of nonconformance with this limited warranty. As an alternative to
replacement, Seller may, in its sole discretion, refund the invoice cost of the
returned Product.
THE FOREGOING SHALL BE THE SOLE AND EXCLUSIVE REMEDY WHETHER IN
CONTRACT, TORT OR OTHERWISE. THERE ARE NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS SPECIFICALLY SET FORTH HEREIN.
10. Purchase Commitments. Buyer reserves the right to increase,
decrease or maintain its purchase levels of the Products as needed. As specified
in Paragraph 1 hereof, if Buyer does not meet the $300,000 per annum, Seller has
the right to renegotiate the pricing levels.
11. Return of Goods. The Buyer may, in its sole discretion, return any
Products to Seller. If the Product returned is undamaged, in its original
unopened container and has more than nine months of shelf life remaining when
received by Seller, Seller will refund 100 % of the purchase price of the
Product, less actual shipping costs and a standard restocking fee, to Buyer. If
the Product returned has less than nine months of shelf life remaining, no
refund will be given to Buyer.
12. Confidentiality. Seller and Buyer may exchange information in the
performance of this Agreement which is confidential or proprietary to the
disclosing party. Seller and Buyer agree that each will maintain as confidential
the disclosed confidential or proprietary in formation of the other. This pledge
of confidentiality will survive the termination of this Agreement for any
reason. Upon termination of this Agreement, each party will promptly return to
the other all original or duplicate sets of disclosed confidential or
proprietary information.
13. Insurance. During the term of this Agreement, Seller shall, at its
own expense, maintain comprehensive general liability insurance in the minimum
amount of $1,000,000 per occurrence for bodily injury and property damage. Upon
Buyer's request Seller shall furnish to Buyer a certificate of insurance
evidencing such coverage.
14. Indemnity. Seller shall indemnify and hold harmless Buyer, its
successors, assigns, directors, officers, agents, employees, parent and
affiliate corporations and their directors, officers, agents and employees, from
and against any and all losses, damages or expenses, including court costs and
reasonable attorneys' fees, resulting from or arising out of any breach of
representation, warranty, covenant or obligation of Seller contained in this
Agreement. Buyer shall indemnify and hold harmless Seller, its successors,
assigns, directors, officers, agents and employees, from and against any and all
losses, damages or expenses, including court costs and reasonable attorneys'
fees, resulting from or arising out of any breach of representation, warranty,
covenant or obligation of Buyer contained in this Agreement. In the event that
any demand or claim is made or suit is commenced against an indemnified party,
the indemnified party shall give prompt written notice to the indemnifying party
and the indemnifying party shall have the right to compromise such claim to the
extent of its own interest and shall undertake the defense of any such suit. If
any loss, damage, death or injury ("Damages") is caused by the negligence, act,
omission or willful misconduct of both Buyer and Seller, the
apportionment of the Damages shall be shared by the parties based upon the
comparative degree of each party's fault.
15. Termination. Either party may terminate this Agreement immediately
and cancel any purchase orders hereunder if the other party breaches any term of
this Agreement and such breach is not remedied within sixty (60) days after
written notice thereof has been given to the breaching party. Furthermore,
Seller may terminate this Agreement immediately upon notice to Buyer if Buyer
does not meet minimum annual requirements. Upon termination of this Agreement in
accordance with its terms, the rights of each party hereunder shall terminate.
Any such termination, however, shall not release Seller or Buyer from
obligations arising under this Agreement prior to the effective date of
termination.
16. Limitation of Liability. Neither Buyer nor Seller shall be liable
to the other for any indirect, incidental, special or consequential damages,
including, but not limited to, loss of profits or revenue, loss of use of any
Products purchased hereunder, or cost of substituted product which arise out of
the performance of or the failure to perform any obligation contained within
this Agreement, including negligence in the course of such performance or
failure to perform.
17. Force Majeure. Neither party hereto shall be considered in default
in performance of its obligations hereunder if performance of such obligations
is prevented or delayed by acts of God or government, labor disputes, failure or
delay of transportation, or by vendors or subcontractors, or any other similar
cause or causes beyond its reasonable control. Time of performance of either
party's obligations hereunder shall be extended by the time period reasonably
necessary to overcome the effects of such force majeure occurrences.
18. Entire Agreement. This Agreement sets forth the entire and only
agreement between Buyer and Seller concerning the subject matter hereof. No
provision of this Agreement can be modified or amended except by an explicit
written amendment signed by both Buyer and Seller.
19. Taxes. The charges for the products set forth in the attached
pricing do not include taxes. Buyer agrees to pay any tax for which it is
responsible hereunder, which may be levied on or assessed against Buyer
directly, and, if any such tax is paid by Seller, to reimburse Seller therefor
upon receipt by Buyer of proof or payment acceptable to Buyer. If Seller is
required to pay sales or use taxes imposed with respect to this Agreement,
Seller shall collect such taxes from Buyer and remit to the proper taxing
authority and shall include a separate line item for said sales and use tax on
the invoice to Buyer. Any other taxes imposed with respect to this Agreement
shall be the responsibility of Seller.
20. Prior Agreements. This Agreement supersedes any and all other or
prior agreements between Seller and Buyer regarding the subject matter hereof.
Any prior
agreement between Seller and Buyer regarding the subject matter hereof, oral or
written, is void and unenforceable as of the effective date of this Agreement.
21. Amendments. Neither this Agreement, nor any Exhibit hereto, may be
amended or modified without the express written consent of Seller and Buyer.
22. Assignment. Neither party shall assign this Agreement in whole or
in part without the prior written consent of the other party; provided, however,
that either party may assign this Agreement and its rights and obligations
thereunder, without prior written consent of the other party, to any successor
corporation resulting from a merger or consolidation of such party. Subject to
the foregoing, all the terms, conditions, covenants and agreements contained
herein shall inure to the benefit of, and be binding upon, any such successor
corporation and any permitted assignees of the respective parties hereto. It is
further understood and agreed that consent by either party to such assignment in
one instance shall not constitute consent by that party to any other assignment.
23. Notices. Any notices or other communications required or permitted
to be given or delivered under this Agreement, with the exception of invoices,
shall be in writing (unless otherwise specifically provided herein), signed by
or on behalf of the party giving such Notice and shall be hand-delivered or
sent, postage prepaid, by Federal Express or similar overnight delivery, or by
registered or certified mail, return receipt requested, addressed as follows:
If to Seller:
MEDgenesis Inc.
0000 X. 00xx Xxxxxx
Xxxxx, XX 00000
Attn: President
If to Buyer:
Home Service Medical
00000 Xxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Divisional Vice President
Either party may change its address set forth in this Section by giving
notice to the other party in accordance with this Section. Notice shall be
effective upon hand delivery or, if by registered or certified mail or Federal
Express or similar overnight delivery, the date of receipt of rejection
evidenced on the return receipt or, if no return receipt, three (3) business
days from posting.
24. Exhibits. The Exhibits attached hereto are a part of this Agreement
and their terms shall supersede those of other parts of this Agreement in the
event of a conflict.
25. Governing Law; Venue. This Agreement shall be construed and all the
rights, powers and liabilities of the parties hereunder shall be determined in
accordance with the laws of the State of Minnesota. Jurisdiction of any suit
instituted to enforce any provision of this Agreement shall be brought in
Minnesota.
THIS AGREEMENT is agreed to and accepted by:
SELLER: BUYER:
MEDgenesis Inc. Home Service Medical & Pharmacy, Inc.
_______________________________ _______________________________
By: By: Xxxx Xxxxx
Its: Its: Divisional Vice President
Date: ______________________ Date: ______________________
