EXHIBIT 10.65
DISTRIBUTION AGREEMENT
This Wholesale Distribution Agreement (this "Agreement") is made as of
this 27th day of September 2001, between Guilford Pharmaceuticals Inc., a
Delaware corporation ("GPI') and National Specialty Services, Inc., a Tennessee
corporation ("Wholesale Specialty Distributor").
BACKGROUND
GPI is a manufacturer of pharmaceutical products, including, without
limitation, the products set forth on Exhibit A attached hereto (as amended from
time to time, the "Products").
Wholesale Specialty Distributor is a wholesale distributor of specialty
pharmaceutical products.
GPI wants to engage Wholesale Specialty Distributor and Wholesale
Specialty Distributor wants to be engaged by GPI to distribute the Products in
the territory set forth on Exhibit B (the "Territory") on the terms and subject
to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the forgoing, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. APPOINTMENT OF WHOLESALE SPECIALTY DISTRIBUTOR.
GPI appoints Wholesale Specialty Distributor as a non-exclusive
distributor of the Products in the Territory on the terms and subject to the
conditions set forth in this Agreement.
2. OBLIGATIONS OF GPI.
2.01. PURCHASE OF PRODUCTS. GPI shall sell to Wholesale
Specialty Distributor the Products indicated on any purchase order provided by
Wholesale Specialty Distributor to GPI at the price or prices indicated on
Exhibit A.
2.02. TAXES. The parties acknowledge that the per unit prices
indicated on Exhibit A are exclusive of federal, state, and local excise, sales,
use and other taxes now or hereafter levied or imposed on the Products, the
shipment, delivery, ownership, possession, or resale of the Products, on this
Agreement, or on any activities hereunder (collectively, "Taxes"). GPI shall not
have any obligation to pay or collect Taxes on account of sales of the Products
by Wholesale Specialty Distributor (except to the extent such Taxes are on
account of the net income of GPO. The collection and payment of Taxes (except as
set forth in the
preceding sentence) shall be the obligation of Wholesale Specialty Distributor
in accordance with the terms of Section 7.03.
2.03. SHIPMENT OF PRODUCTS. GPI shall ship the Products
purchased by the Wholesale Specialty Distributor pursuant to any purchase order
to Wholesale Specialty Distributor at the following address: 000 Xxxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or such other address as Wholesaler shall
indicate on the purchase order.
2.04. TRANSFER OF TITLE; RISK OF LOSS. Shipment of Products shall be
F.O.B. Wholesaler Specialty Distributor's facility. Risk of loss and title to
the Products purchased by Wholesale Specialty Distributor under any purchase
order shall pass to the Wholesale Specialty Distributor upon delivery to
Wholesale Specialty Distributor at Wholesaler Specialty Distributor's facility.
2.05. DROP SHIPMENTS. If at any time Wholesale Specialty Distributor
does not have sufficient inventory of the Products to fill orders for the
Products from its customers or Wholesale Specialty Distributor otherwise
determines that it is in the best interests of its customers, Wholesale
Specialty Distributor may request that GPI ship the Products purchased by
Wholesale Specialty Distributor pursuant to a purchase order directly from GPI's
distribution facility to Wholesale Specialty Distributor's customers (each a
"Drop Shipment"). GPI may honor requests to make a Drop Shipment in its sole and
absolute discretion. Risk of loss and title to the Products in each Drop
Shipment shall remain with GPI until delivery to Wholesale Specialty
Distributor's customers.
2.06. SHIPMENT INSTRUCTIONS. The method of transportation and routing of
all shipments, including Drop Shipments shall be in accordance with Exhibit C.
2.07. INVOICES. GPI shall invoice Wholesale Specialty Distributor for
the Products purchased pursuant to any applicable purchase order on the shipment
date for such Products. Delivery of all quantities of Products referred to in
GPI' s invoice shall be deemed to have been made in full, unless within seven
(7) days from the date of receipt of the Product Wholesale Specialty Distributor
notifies GPI that it has not received the ordered quantities of the Products.
3. OBLIGATION OF WHOLESALE SPECIALTY DISTRIBUTOR.
3.01. SALES BY WHOLESALE SPECIALTY DISTRIBUTOR. Wholesale Specialty
Distributor shall not knowingly sell any Products to customers that sell or
intend to sell the Products outside of the Territory. Unless Wholesale Specialty
Distributor has obtained the prior written authorization of GPI, Wholesale
Specialty Distributor shall not knowingly sell any Products to customers who
sell or intend to sell the Products on a wholesale or distribution basis.
3.02. PROMOTION BY WHOLESALE SPECIALTY DISTRIBUTOR. Wholesale Specialty
Distributor shall actively promote the sale and use of the Products to its
customers through methods customarily employed by Wholesale Specialty
Distributor with regard to the other products carried by Wholesale Specialty
Distributor. Wholesale Specialty Distributor shall include each new Product and
any new sizes and/or dosage forms of existing Products in any routine
distribution plan operated by Wholesale Specialty Distributor during the term of
this
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Agreement.
3.03. PAYMENT BY WHOLESALE SPECIALTY DISTRIBUTOR. Wholesale Specialty
Distributor shall pay for all regular orders purchased by Wholesale Specialty
Distributor in accordance with the payment terms set forth on Exhibit D. Drop
Shipments shall be deemed to be purchases of the Products by the Wholesale
Specialty Distributor and Wholesale Specialty Distributor shall be responsible
for the payment of any invoices with respect to any Drop Shipment. All invoices
must be paid in full under the terms specified on Exhibit D.
3.04. FINANCIAL AND CREDIT POSITION. Wholesale Specialty Distributor
shall maintain a financial condition reasonably satisfactory to GPI, and shall
substantiate such condition with annual audited consolidated financial
statements or with other documentation as reasonably requested by GPI from time
to time. If, in GPI' s sole determination, at any time during the term of this
Agreement, the financial condition of the Wholesale Specialty Distributor
becomes impaired or unsatisfactory, GPI may require that Wholesale Specialty
Distributor pay for its purchases of Products in advance by cash payment or
require Wholesale Specialty Distributor to provide other assurances for the
payment or such Products.
3.05. ORDERING. Wholesale Specialty Distributor shall transmit
purchase orders for the Products to GPI either direct via EDT, facsimile, or
telephone. If orders for products are placed by facsimile or telephone, they
shall be placed to the following numbers: (000) 000-0000 (facsimile); and (866)
000-0000 (telephone).
3.06. PURCHASE OF PRODUCTS. Wholesale Specialty Distributor shall
purchase the Products exclusively from GPI according to the terms of this
Agreement. Wholesale Specialty Distributor shall not be permitted to purchase
the Products from sources other than GPI (including, but not limited to, other
wholesalers) without GPI's prior written consent. Wholesale Specialty
Distributor shall not knowingly purchase or attempt to purchase Products that
have previously been exported or are designated for non-United States sales.
3.07. MAINTENANCE OF INVENTORY. If requested by GPI, Wholesale
Specialty Distributor shall use commercially reasonable efforts to, from and
after the date of such request, maintain sufficient inventory of the Products to
promptly and adequately supply the demand of its customers, subject in all cases
to the manufacturing capabilities of GPI.
3.08. SALES SUPPORT SERVICES. Wholesale Specialty Distributor shall
provide sales support services for the Products as well as the order-taking and
delivery services sufficient to meet the reasonable needs of customers for the
Products.
3.09. SALES REPORTS. ON A MONTHLY BASIS, WHOLESALE SPECIALTY
Distributor shall report to GPI information regarding its sales of the Products
in the form set forth on Exhibit B.
3.10. SPECIAL CONTRACT PRICING. Wholesale Specialty Distributor shall
honor any pricing arrangements agreed to between GPI and GPI Marketed Customers
("Special Contract Pricing"), subject to the continued validity of such Special
Contract Pricing in accordance with applicable law. Wholesale Specialty
Distributor's Standard Policy on Chargebacks (a copy of which is incorporated
herein as Exhibit H (the "Chargeback Policy")) will govern the
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administration of the Special Contract Pricing under this Agreement.
3.11. COMPLIANCE WITH LAWS. Wholesale Specialty Distributor shall take
all necessary precautions to prevent the Products from being possessed, used,
handled, distributed or sold by those who may not lawfully possess, use, handle,
distribute or sell the Products, and Wholesale Specialty Distributor will fully
comply with local, state, and federal laws regarding possession, use,
distribution, sale and safe handling of the Products. Wholesale Specialty
Distributor shall maintain all federal, state and local registrations necessary
for the lawful handling of the Products and shall promptly notify GPI of any
denial, revocation or suspension of any such registration.
3.12. PROPER HANDLING AND STORAGE. Wholesale Specialty Distributor
shall handle and store the Products in a clean and orderly location, in a manner
which will assure that the proper rotation and quality of the Products are
maintained, and in compliance with all federal, state and local laws and
regulations. Wholesale Specialty Distributor shall comply with GPI criteria on
storing and shipping the Products that require special handling, as provided to
Wholesale Specialty Distributor from time to time. Wholesale Specialty
Distributor shall allow GPI TO inspect its storage facilities during normal
business hours, upon GPI providing at least seven (7) days advance notice to
Wholesaler. Wholesale Specialty Distributor shall in no way or manner be
permitted to repackage the Products. Wholesale Specialty Distributor shall
notify GPI promptly of any changes in the appearance of any of the Products or
the packaging of the Products.
3.13. NO SUBSTITUTIONS. Wholesale Specialty Distributor shall fill
orders for the Products only with the Products. Wholesale Specialty Distributor
shall not substitute any orders for the Products with products other than the
Products.
3.14. CHANGE OF CONTROL. Wholesale Specialty Distributor shall notify
GPI of any change in address, at least thirty (30) days prior to the date on
which such change in address is to occur.
3.15. ADVERSE EVENT AND PRODUCT COMPLAINT REPORTING. Wholesale
Specialty Distributor shall forward to GPT any information the Wholesale
Specialty Distributor obtains from a customer regarding Adverse Events or
Product Complaints (as each term is defined below). The customer reporting the
Adverse Event or Product Complaint shall be instructed to call a GPI
representative by calling GPI's toll free hot line at (000) 000-0000, or such
other number or numbers provided to Wholesale Specialty Distributor by GPI. For
the purposes of this Agreement, "Adverse Event" means any adverse reaction
associated with the use of a Product in humans, whether or not considered
product related and whether or not confirmed by a health professional. The term
"associated with the use of product" is not limited to a causal relationship of
the reported event to the Product, and may include (i) an Adverse Event
occurring in the course of the use of a Product in professional practice, (ii)
an adverse event occurring from abuse of a Product, (iii) an adverse event
occurring from the withdrawal of a Product, (iv) any significant failure of
expected pharmacological action. For the purposes of this Agreement, a "Product
Complaint" means a claim or expression of displeasure, dissatisfaction or
annoyance with a Product, Product related materials or Product related
information. A Product Complaint may or may not involve a formal charge or
accusation. A Product Complaint may be related to, among other things, identity,
purity, potency, safety or
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quality of the product. Notwithstanding the definition of Product Compliant, if
the complaint involves a medical event in a patient, it is regarded as an
Adverse Event.
4. SPECIAL CONTRACT PRICING. From time to time, GPI may request that
Wholesale Specialty Distributor fulfill orders of the Products from its
inventory to customers for which GPI was the sole marketer of the Products ("GPI
Marketed Customers"). If GPI has quoted a GPI Marketed Customer a price for any
Product that is lower than the price for such Product set forth on Exhibit A
(for such Products), then GPI shall reimburse to Wholesale Specialty Distributor
the difference between the price quoted to the GPI Marketed Customer and the
price paid by the Wholesale Specialty Distributor for the Product, if the
Wholesale Specialty Distributor fulfills the GPI Marketed Customer's order for
the Product out of its inventory. Such reimbursement may, at the election of
GPI, be in the form of credits to Wholesale Specialty Distributor against future
purchases of products.
5. RECALLS. GPI shall reimburse Wholesale Specialty Distributor, consistent
with HDMA standards, for the full amount of all reasonable costs and expenses
incurred by Wholesaler in connection with Wholesale Specialty Distributor's
performance of any recall services or assistance relating to the Products;
provided that, such recall is not due to Wholesale Specialty Distributor's gross
negligence, willful misconduct or illegal conduct. Wholesale Specialty
Distributor will be credited for Products returned to GPI due to recalls of the
Products at the Wholesale Specialty Distributor's purchase price for the
Products, calculated on a first-in, first-out basis. All shipping expenses for
recalled Product, both for shipments from Wholesale Specialty Distributor's
customers to Wholesale Specialty Distributor and for shipments from Wholesale
Specialty Distributor to GPI, shall be the sole responsibility of GPI, unless
such recall is due to Wholesale Specialty Distributor's gross negligence,
willful misconduct or illegal conduct.
6. WARRANTY; INDEMNITY; LIMITATION OF LIABILITY; INSURANCE.
6.01. WARRANTY; DISCLAIMER OF IMPLIED WARRANTIES. GPI warrants that
the Products are manufactured and distributed in accordance with the Food, Drug
and Cosmetic Act, as amended (the "Act") and in accordance with Exhibit F.
EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE, GPI MAKES NO WARRANTIES, EXPRESS
OR IMPUED, INCLUDING, Without LIM1TATION, WARRANTIES AS TO MERCHANTABILITY OR
Fitness FOR A PARTICULAR PURPOSE, With RESPECT TO ANY OF THE PRODUCTS.
6.02. INDEMNIFICATION. GPI shall defend, indemnify, and hold harmless
Wholesale Specialty Distributor and its parent, affiliates, directors, officers,
employees and representatives from and against any and all claims, liabilities,
losses, damages, costs, and expenses (including without limitation reasonable
attorneys' fees) arising directly or indirectly out of:
a. injury or death to person or property alleged to have
been caused by any defect in the Products (exclusive of defects shown to be
attributable to Wholesale Specialty Distributor's negligence or gross misconduct
(but only to the extent of such negligence or gross misconduct) or breach of
this Agreement); or
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b. the manufacture, marketing, testing, shipping, sale,
possession or use
of the Products, unless such claim, liability, loss, damage, cost or expense is
shown to be attributable to Buyer's negligence (but only to the extent of such
negligence) or breach of this Agreement; or
c. "class of trade" pricing, if any, maintained by GPI from
and after the effective date of this Agreement, including without limitation
those arising out of Wholesale Specialty Distributor's administration of Special
Contract Pricing or GPI Marketed Customer pricing; or
d. any intellectual property infringement actions
(including patent, trademark, service xxxx, copyright trade dress, trade secret
and other proprietary rights) brought by a third party in connection with
Wholesale Specialty Distributor's distribution and sale of Products hereunder
(except to the extent caused by Wholesale Specialty Distributor's breach of this
Agreement, negligence or other intentional conduct) or in connection with any
marketing materials or information provided to Wholesale Specialty Distributor
by GPI.
provided that, in all cases that GPI has promptly been notified in writing of
such suit, claim, or proceeding and is given full and complete authority
(including settlement authority), by Wholesale Specialty Distributor or its
directors, employees or agents, information and assistance by Wholesale
Specialty Distributor for such defense; further provided, that no admission is
made by either party without the consent of the other party and its insurers.
GPI shall not be liable for legal expenses Wholesale Specialty Distributor
incurs prior to GPI's receipt of written notice of a claim for indemnification
by Wholesale Specialty Distributor and the express acknowledgement by Wholesale
Specialty Distributor of GPI's authority to defend such claim, suit or
proceeding. GPI shall not be liable for legal expenses Wholesale Specialty
Distributor incurs once GPI has received notice of a claim for indemnification
and GPI has assumed the defense thereof.
6.03. LIMITATION OF LIABILITY. EXCEPT WITH REGARD TO CLAIMS MADE BY
THIRD PARTIES, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOST PROFITS OR LOST OPPORTUNITY COSTS, AS A RESULT OF
ANY CLAIM ASSERTED BY SUCH OTHER PARTY, WHETHER IN CONTRACT OR IN TORT, ARISING
OUT OF OR RELATED TO THIS AGREEMENT.
6.04. INSURANCE.
(A) During the term of this Agreement and thereafter as may be
necessary to cover claims associated with Products purchased by
Wholesale Specialty Distributor (whether before, during or after such
term), GPI shall obtain, pay for, and keep in full force and effect
commercial general liability insurance, with one or more reputable
insurance carriers with a minimal rating by AM Best of A- or its
equivalent, (including coverage for product liability and personal
injury damages) with a per occurrence limit of not less than $10
million. "National Specialty Services, Inc." shall be designated as an
"additional insured" under all such insurance policies, and GPI shall
deliver to Wholesale Specialty Distributor certificates evidencing the
existence and continuation
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of such insurance at the execution of this Agreement and upon GPI's
periodic renewal of such policy. Such insurance shall include a
provision for at least thirty (30) days prior written notice in
Wholesale Specialty Distributor in the event of cancellation or material
reduction of coverage.
(B) During the term of this Agreement and thereafter as may be
necessary to cover claims associated with the distribution of products
supplied by GPI to Wholesale Specialty Distributor (whether before,
during, or after such term), Wholesale Specialty Distributor shall
obtain, pay for, and keep in full force and effect commercial general
liability insurance, with one or more reputable insurance carriers with
a minimal rating by AM Best of A- or its equivalent, (including coverage
for product liability and personal injury damages) with a per occurrence
limit of not less than $10 million. "Guilford Pharmaceuticals Inc."
shall be designated as an "additional insured" under all such insurance
policies, and Wholesale Specialty Distributor, shall deliver to GPI
certificates evidencing the existence and continuation of such insurance
at the execution of this Agreement and upon wholesale specialty
distributor's periodic renewal of such policy. Such insurance shall
include a provision for at least thirty (30) days prior written notice
to GPI in the event of cancellation or material reduction of coverage.
7. RETURNS; CREDITS; AND TAXES.
7.01. RETURNS AND CREDITS. GPI will accept returns of the Products
and, where appropriate, credit Wholesale Specialty Distributor's account, in
accordance with Exhibit G.
7.02. TAXES. The collection and payment of all Taxes owed as a result
of the sale of any Products by Wholesale Specialty Distributor shall be the
responsibility of Wholesale Specialty Distributor.
7.03 INVENTORY. If at any time during the term of this Agreement,
GPI's published wholesale price for any Product is decreased, then GPI shall
issue a credit to Wholesale Specialty Distributor in an amount equal to the
difference between (a) the published wholesale acquisition price of Wholesale
Specialty Distributor's then-current inventory of that Product as of the date
Wholesaler purchased that Product, and (b) the value of Wholesale Specialty
Distributor's then-current inventory of that Product, determined using the
decreased price for all such inventory. For purposes of this section, "Wholesale
Specialty Distributor's then-current inventory" shall include all inventory held
in Wholesale Specialty Distributor's distribution centers, all Products owned by
Wholesale Specialty Distributor at any store owned or operated by a customer of
Wholesale Specialty Distributor and held by such customer on consignment, and
all Product "in transit" to or from such distribution centers on the effective
date of such price decrease. For Product owned by Wholesale Specialty
Distributor and held by customer on consignment, the amount is calculated as the
difference between (a) the lesser of the published wholesale acquisition price
or a customer chargeback contract price of Wholesale Specialty Distributor's
then-current inventory of that Product at the customer location and (b) the
value of Wholesale Specialty Distributor's then current inventory of that
Product at the customer's location, determined using the new decreased published
wholesale acquisition price or customer chargeback contract price, as
applicable. Wholesale Specialty Distributor will use good-faith efforts to
notify GPI of the amount of any credit due pursuant to
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this section within one hundred twenty (120) days following the effective date
of such price decrease.
8. TERM
8.01. TERM. The term of this Agreement shall commence on the date of
this Agreement and shall continue for a period of one (1) year from the date
hereof (the "Initial Term"). At the expiration of the Initial Term and each
anniversary thereafter, this Agreement shall renew automatically for successive
one-year terms (each a "Renewal Term"), unless either party notifies the other
party of its intention to terminate this Agreement at least thirty (30) days
prior to the expiration of the Initial Term or a Renewal Term, as the case may
be.
8.02. TERMINATION. This Agreement may be terminated by the parties in
the following manner:
a. Either party may terminate this Agreement immediately
upon breach of this Agreement by the other party if such breach remains uncured
for fifteen (15) days after written notice thereof, or the breaching party fails
to diligently pursue a cure if the breach is of a nature that it cannot be cured
in fifteen (15) days.
b. Either party may terminate this Agreement without cause
upon sixty (60) days prior written notice thereof to the other party.
8.03. EFFECT OF TERMINATION. Upon the termination or expiration of
this Agreement:
a. Each party shall within thirty (30) days pay the other
party all amounts due under any invoice or credit memo; and
b. Wholesale Specialty Distributor shall immediately return
to GPI, in accordance with any requirements of GPI, all Products in the
possession of the Wholesale Specialty Distributor and GPI shall credit the
purchase price for such Products to the amounts owed by Wholesale Specialty
Distributor to GPI, if any. The parties shall be permitted to offset amounts
owed to each other pursuant to this Section 8.03b.
c. Section 8.03 and Sections 6 and 9.d shall survive the
termination or expiration of this Agreement until the obligations of the parties
under these Sections have been fully performed.
9. GENERAL PROVISIONS
a. All orders are subject to acceptance and approval by
GPI.
b. Neither GPI nor Wholesale Specialty Distributor shall be
liable to the other for failing to carry out the terms of this Agreement where
such failure is the result of a strike or other labor disturbance, fire, flood,
earthquake, storm, governmental action, or other reason beyond its control.
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c. In the event there is a shortage of the Products, GPI
shall have the right and sole discretion to allocate the available Products
among its customers in a commercially reasonable manner which does not place
Wholesale Specialty Distributor at a competitive disadvantage.
d. During the term of the Agreement, each party may find it
necessary to disclose confidential and proprietary information to the other
(hereinafter "Confidential Information"). The Confidential Information may
include but is not limited to pricing generally, Special Contract Pricing, Price
quotations for the Products by Wholesale Specialty Distributor or GPI, delivery
schedules, manufacturing schedules, sales amounts and sales figures. During the
term of this Agreement and for three (3) years thereafter, regardless of any
termination earlier than the expiration of the term of this Agreement, each
party shall maintain the Confidential Information in confidentiality and shall
not reveal the Confidential Information to third parties without the written
consent of the disclosing party, except as required by law. Each party shall use
the Confidential Information only for the purposes of this Agreement. These
restrictions shall not apply to Confidential Information that:
(1) is in the public domain at the time of disclosure;
(2) after receipt, becomes part of the public domain by
publication or otherwise, except by breach of this Agreement by
the party receiving the Confidential Information;
(3) the party receiving the Confidential Information can
establish by documenting evidence that it was in its possession
at the time of disclosure by the other party;
(4) the Confidential Information is in the possession of the
receiving party from third parties not under an obligation to
maintain its confidentiality;
(5) is independently developed by or for the party receiving
the Confidential Information hereunder who have had no access to
such Confidential Information as shown by documenting evidence;
or
(6) is required to be disclosed by law, by a judicial or
administrative order, or by a regulatory agency with appropriate
jurisdiction.
e. This Agreement is the entire and only understanding
between the parties as to the subject matter hereof and supersedes all prior
promises, agreements or understandings between the parties. This Agreement may
be changed or amended only in a writing signed by duly authorized
representatives of GPI and Wholesale Specialty Distributor. All attachments and
addenda to this Agreement are hereby incorporated by reference.
f. This Agreement, and any rights or obligations hereunder,
shall not be assigned by either party without the written consent of the other
party, except that either party may otherwise assign its respective rights and
transfer its respective duties to any assignee of all or substantially all of
its business (or that portion thereof to which this Agreement relates) or in the
event of its merger or consolidation or similar transaction. Either party may
also sell
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or assign any payments due hereunder.
g. All notices, claims, certificates, requests, demands and
other communications hereunder shall be in writing and shall be
delivered personally or sent by facsimile transmission,
nationally-recognized express courier, or United States registered or
certified mail, return receipt requested, addressed as follows:
If to GPI, to:
Guilford Pharmaceuticals Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
A1TN: Xxxxx Xxxxxx
Assistant Manager, Distribution & Customer Service
Fax: 000-000-0000
If to Wholesale Specialty Distributor:
National Specialty Services, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
ATT'N:
----------------------------
Fax: 615-
-----------------------------------
h. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Delaware without regard to the
conflicts of laws provisions thereof.
i. The parties shall be permitted to offset amounts
owed to each other pursuant to this Agreement.
j. Each party shall comply with all federal, state
and local laws and regulations applicable to its operations, including but not
limited to, those dealing with employment opportunity and affirmative action
including Executive Order 11246 (Equal Opportunity), 38 U.S.C. Section 4212(a)
(Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era), and
29 U.S.C. Section 793 (Affirmative Action for Workers with Disabilities), and
any amendment and applicable regulations pertaining thereto. In addition, each
party shall comply with all terms of 48 C.F.R. Section 52.244-6 (Subcontracts
for Commercial Items and Commercial Components) (including the requirement of
including this provision in subcontracts awarded under this contract), 15 U.S.C.
Section 637 (d) (2) and (3) (Utilization of Small Business Concerns), and such
provision is hereby incorporated into this Agreement as if fully set forth
herein. In accordance with the provisions of 48 C.F.R. Section 52.209-6, each
party certifies that neither it nor its principals was or is debarred,
suspended, or proposed for debarment by the Federal Government. In addition,
each party represents and warrants that it complies with all federal, state,
local and other applicable laws, regulations, conventions or treaties
prohibiting any form of child labor or other exploitation of children in the
manufacturing and delivery of such party's products or services.
k. During the term of this Agreement, upon
reasonable prior notice and
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during normal business hours, either party shall be entitled to audit and
inspect those relevant records which are maintained by the other party in direct
connection with its performance under this Agreement; provided, however, the
audit or inspection shall be performed by bona tide, full-time employees of the
party conducting such audit or inspection and in no event shall any such audit
or inspection relate to any transaction or event which occurred more than twelve
months prior to the date of such audit or inspection. GPI chargeback audits
shall be governed by the additional terms and conditions contained in the
Chargeback Policy.
I. The relationship among the parties is and shall
be that of independent contractors. This Agreement does not establish or create
a partnership or joint venture among the parties.
m. If any part of this Agreement is determined to
be invalid or declared null and void by any court of competent jurisdiction,
then such part will be reformed, if possible, to conform to the law and, in any
event, the remaining part of this Agreement will remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Wholesaler
AGREEMENT as of the date set forth above.
GUILFORD PHARMACEUTICALS INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------
Title: EVP, Commercial Operations
--------------------------------
NATIONAL SPECIALTY SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
--------------------------------
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