EXHIBIT 10.01
AGREEMENT
THIS AGREEMENT ("Agreement") is entered into by and between Derma Sciences,
Inc. ("Vendor") and Xxxxxxx Enterprises, Inc. and its subsidiaries ("Xxxxxxx")
on behalf of itself and all facilities owned or operated by Xxxxxxx
(individually, a "Xxxxxxx Facility" and collectively, the "Xxxxxxx Facilities").
IN CONSIDERATION of the mutual promises and covenants herein contained, and
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Agreement to Sell. Vendor agrees to sell to Beverly's distributor of
choice the goods identified on Exhibit "A" attached hereto (the "Goods.") The
Goods will have the specifications, features, pricing and carton specifications
detailed on Exhibit "A."
2. Agreement to Purchase. Vendor shall be the primary supplier to Beverly's
distributor of choice for the Goods. Xxxxxxx will work in good faith with the
Xxxxxxx Facilities to assure purchasing of the Goods from Vendor provided that
acceptable standards of service, timing, quantity and quality are consistently
maintained.
3. Term of Agreement. The term of this Agreement ("Term") shall begin on
June 1, 1999 and run through May 31, 2001; provided, however, Xxxxxxx may, at
its option, extend this Agreement for an additional year upon notice to Vendor
given not later than ninety days prior to termination hereof; provided, further,
in the event Xxxxxxx exercises the foregoing option, prices for the Goods in
effect during the option year shall be renegotiated by the parties hereto.
4. Distribution and Payment Terms. Vendor shall ship the Goods upon
order from such distributor(s) as Xxxxxxx may, from time to time, designate
(individually, a "Xxxxxxx Distributor" and collectively, the "Xxxxxxx
Distributors"). Vendor shall invoice the Xxxxxxx Distributors for ordered Goods
at Vendor's standard "distributor list price" for such Goods. Thereafter, Vendor
shall credit to such Xxxxxxx Distributor's account with Vendor an amount equal
to the difference between Vendor's "distributor list price" to such Xxxxxxx
Distributor for the subject Goods and the price therefor set forth on Exhibit
"A" hereof.
The foregoing notwithstanding, in the event Xxxxxxx certifies to Vendor
that a Xxxxxxx Distributor distributes products exclusively to Xxxxxxx, then
Vendor shall invoice such Xxxxxxx Distributor for ordered Goods at the price
therefor set forth on Exhibit "A" hereof. Xxxxxxx so certifies Liberty Foods,
Inc., a wholly owned subsidiary of Xxxxxxx, and Vendor accepts such
certification.
5. Shipment. All Goods shall be shipped in their normally stored condition
with all orders properly marked and packaged in accordance with the
specifications heretofore determined by Xxxxxxx, Xxxxxxx Distributors and
Vendor.
6. Labels. The labels required by statute or regulation on the Goods
shipped by Vendor shall in all material respects be in the form required by all
applicable state and federal rules and regulations.
7. Liability Insurance. Vendor shall maintain product liability insurance
with a reputable and financially sound carrier in the amount of $2,000,000
providing coverage for liability of Vendor for the sale of unreasonably
dangerous products to Xxxxxxx together with other customary product liability
coverage.
8. Damage to Shipments. If any shipment is damaged, distributor will
resolve any claim for damages by first filing a claim for such damages with the
shipper of the subject Goods.
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The risk of loss shall pass to Distributor upon acceptance of each shipment.
9. Pricing. The price for the Goods shall be the purchase price indicated
on the product formulary attached hereto as Exhibit "A."
10. Facility Contact by Vendor. Vendor will not mail, e-mail or deliver
literature, product information or direct mail materials that have not been
reviewed and approved by the Xxxxxxx Procurement Department. This does not
include the Vendor's standard catalog mailings.
11. Termination Clause. This Agreement may be terminated by either party,
no fault, no cause with ninety (90) days written notice.
12. Value Added Services.
A. Dispenser Program
(i) Xxxxxxx logo, "Press Pak" dispensers will be provided at no charge, and
in a quantity sufficient to meet Beverly's immediate and on-going needs.
(ii) Vendor will rebate to Xxxxxxx the amount of two dollars per installed
Press Pak dispenser.
(iii) Vendor will provide to Xxxxxxx a written installation and removal
plan within thirty (30) days of execution hereof. The plan shall provide for,
inter alia, (a) removal of old dispensers, (b) installation of new "Press Pak"
dispensers, (c) indemnification, secured by insurance, with respect to
installation and removal, and (d) procedures for instituting claims relative to
damages associated with installation and removal.
(iv) Vendor will provide Xxxxxxx gallon bottle, chrome brackets at no
charge and in a quantity sufficient to meet Beverly's immediate and on-going
needs.
B. Education and Inservice Support.
(i) Vendor will provide at no charge customized "Xxxxxxx Users Manuals" for
all
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Derma Sciences products to include instructions for use, MSD Sheets, cross
reference to competitive products and any other Xxxxxxx specific information,
policy, instructions and protocols deemed necessary by Xxxxxxx.
(ii) Vendor will produce and supply at no charge custom videotaped programs
on handwashing, perineal care, resident bathing, and/or any other Xxxxxxx
specific program as related to skin care or Derma Science products.
C. Customer Service
Vendor will maintain a full-time sales, clinical and customer service staff
adequate to meet the on-going needs of Xxxxxxx.
13. Implementation Plan. Vendor will provide to Xxxxxxx a written
implementation plan within thirty (30) days of execution hereof. The plan shall
be comprehensive with timelines defined. Vendor will furnish weekly status
reports as to progress of implementation.
14. Year 2000 Compliance and Warranty.
A. Vendor represents and warrants that:
(i) Its internal computer (including both hardware and software) and
information technology systems (collectively referred to hereinafter as the "IT
Systems") and any Date Dependent Products provided or sold to Xxxxxxx by or
through Vendor under this Agreement are Year 2000 compliant and designed to be
used prior to, during, and after the calendar year 2000 A.D.
(ii) Said IT Systems and Date Dependent Products will operate during each
such time period without error relating to Date Data, specifically including any
error relating to, or the product of, Date Data which represents or references
different centuries or more than one century.
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B. Vendor further warrants and represents that its IT Systems and Date
Dependent Products are and will continue to be Year 2000 Compliant. All data
processing by the IT Systems and/or Date Dependent Products will include Four
Digit Year Format and recognize and correctly process dates for Leap Year.
Additionally, all date sorting by the IT Systems and/or Date Dependent Products
that include a "year category" shall be done based on the Four Digit Year Format
code.
C. Definitions:
(i) Date Data. Any data or input which includes a reference to date.
(ii) Date Dependent Product. A product or system sold to or provided to
Xxxxxxx by Vendor is date dependent if it inputs, processes, stores, outputs or
displays date information or if a system/product is affected in any way by the
storage of or access to Date Data.
(iii) Four Digit Year Format. A format that allows entry or processing of a
four digit year date: the first two digits shall designate the century and the
second two digits shall designate the year within the century. As an example,
1996 shall mean the 96th year of the 20th century.
(iv) Leap Year. The year during which an extra day is added in February
(February 29th). Leap Year occurs in all years divisible by 400 or evenly
divisible by 4 and not evenly divisible by 100. For example, 1996 is a Leap Year
since it is divisible by 4 and not evenly divisible by 100. 2000 is a Leap Year
since it is divisible by 400.
(v) Year 2000 Compliant. Data outside of the range 1990-1999 will be
correctly processed in the IT Systems or Date Dependent Products software as
well as any level of hardware including, but not limited to, microcode,
firmware, application programs, files and databases.
D. Remedies for Non-Compliance of Year 2000 Warranty. It shall be a Vendor
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breach under this Agreement if its IT Systems and/or any Date Dependent Products
sold or provided to Xxxxxxx fail to maintain and uphold the Year 2000 Compliance
Performance Warranty. In such event, Xxxxxxx shall be afforded those remedies as
set out hereinbelow:
(i) Vendor shall forthwith refund to Xxxxxxx the total purchase price paid
for any such non-complying Date Dependent Products; and
(ii) Vendor shall hold Xxxxxxx harmless, and at its own expense defend or
settle any claims, suits, actions or proceedings brought against Xxxxxxx to the
extent such claim, suit, action or proceeding is based upon or arising from
Vendor's breach of its representations and/or warranties set forth in this
Agreement. Vendor shall pay all damages and costs finally awarded against
Xxxxxxx (or payable by Xxxxxxx pursuant to a settlement agreement or settlement
agreements) in connection with any such claim, suit, action or proceeding.
15. Notices. All notices, payments, demands, or consents required or
permitted under this Agreement shall be in writing and shall be delivered
personally or sent by certified or registered mail to the respective parties at
the address set forth below or at such other address as shall be given by either
party to the other in writing:
To Xxxxxxx:
Xxxxxxx Enterprises, Inc.
Corporate Procurement
0000 Xxxxxx Xxxxxx, Xxxxx 00X
Xxxx Xxxxx, XX 00000-0000
To Vendor:
Derma Sciences, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
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16. Shortages in Shipments. If any shipment of Goods to Distributor is not
delivered in accordance with the quantity ordered by Distributor, the order will
only be accepted by Distributor after the quantity of such shortages is duly
noted on both the xxxx of lading and the freight xxxx. In the event of any
shortage in the shipment of Goods, Distributor will attempt to immediately
notify: (a) the delivery department or such similar division of the shipper of
such Goods; and (b) Vendor's customer service department.
17. Binding Effect of Agreement. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties, their personal and legal
representatives and their heirs, successors and permitted assigns.
18. Assignment. Neither party may assign, sell, transfer or otherwise
alienate this Agreement, or any duty obligation or right under this Agreement,
without the express written consent of the other party which consent shall not
be unreasonably withheld. Any corporate restructuring is exempt from the
limitations of this paragraph.
19. Entire Agreement. This Agreement and the Confidentiality Agreement
constitute the entire agreement and understanding between the parties and
supersede all prior oral and written understandings, representations and
discussions between the parties respecting its subject matter. The Agreement may
not be changed or modified except by subsequent written amendment executed by
both parties.
20. Relationship Between Parties. Each party hereto is an independent
contractor and nothing in this Agreement shall create or be construed to create
a partnership, joint venture or agency relationship. Xxxxxxx does not grant to
Vendor any authority of any kind to bind Xxxxxxx in any respect whatsoever. Each
party agrees to indemnify and hold the other harmless for the
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consequences of any unauthorized representations or warranties made by its
employees or agents and from any liability, expense or claims that result from
the acts or omissions of one of the parties, its employees or agents.
21. Duplicate Execution of Agreement. This Agreement may be executed in
duplicate parts each of which when so executed and delivered shall be deemed to
be an original and both of which taken together shall constitute one and the
same instrument.
22. Paragraph Headings. The headings of the paragraphs herein shall be for
assistance purposes only and shall not alter, change or modify the meaning of
the written paragraphs herein.
23. Severability. In the event that any word, part, paragraph, or other
portion of this Agreement shall be determined to be invalid, unlawful or
inoperable, the remainder of this Agreement shall be severable, valid and
effective as if such invalid, unlawful, or inoperable work, part, paragraph, or
other portion of this Agreement was not included herein.
24. Confidentiality Agreement. This Agreement shall be subject to the terms
of a Confidentiality Agreement executed between the parties hereto. The
obligations under the Confidentiality Agreement shall survive the Term of this
Agreement and shall continue indefinitely.
25. Financial Strength of Vendor. Vendor hereby represents and warrants
that its current financial statements heretofore delivered to Xxxxxxx are true
and correct in all material respects and that it is a solvent corporation able
to meet all financial obligations associated with its operations and this
Agreement. Any financial restrictions, liens, or judgements suffered by either
party and affecting either party's ability to perform under the terms of this
Agreement will be cause for the other to terminate this Agreement.
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IN WITNESS WHEREOF, the parties have hereunder set their hands and seals
this 4th day of June, 1999.
XXXXXXX ENTERPRISES, INC.
By: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Executive Vice President - Asset Management
By: /s/ Xxxx Xxxxxxxxxx
Xxxx Xxxxxxxxxx
Director, Corporate Procurement
DERMA SCIENCES, INC.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, CPA, MST
Vice President and Chief Financial Officer
EXHIBIT A
1999 Xxxxxxx Pricing
Derma Sciences, Inc. Skin Care Products
4/8/99
PRODUCT SIZE UNITS/CASE CATALOG NO. CASE PRICE UNIT PRICE BEACH # GSMS #
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BODY WASHES/SHAMPOOS/HAND SOAPS
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ApriVera(R) 1 gallon 4 S107-1G $28.00 $7.00 21863 16701
Lotion-based odor-reducing, 800 ml bag 12 S107-800ML $25.92 $2.16 21241
non-alkaline body, hair, 16 oz. 12 S107-16Z $19.60 $1.63 16670
and hand cleanser, 8 oz. 24 S107-8Z $18.24 $0.76 21864 16699
Safe and effective for tub, 4 oz. 24 S107-4Z $13.92 $0.58
shower, bedside basin, and
whirlpool bathing.
Proprietary apricot fragrance.
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Bathe Away(R) 1 gallon 4 S101-1G $27.00 $6.75 21884 16697
Complete body, hair, and 800 ml bag 12 S101-800ML $25.44 $2.12
hand cleansing product. 16 oz. 12 S101-16Z $18.72 $1.56
Contains glycerine, 8 oz. 24 S101-8Z $17.28 $0.72 16698
coconut oil, and chamomile, 4 oz. 24 S101-4Z $13.44 $0.56
and is pH balanced. For
use in tub, shower,
or bedside basin.
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Swash(TM) 1 gallon 4 S102-1G $35.60 $8.90 23959 17531
Versatile, conditioning 8 oz. 24 S102-8Z $21.12 $0.88 23960 17532
cleanser for hair and skin.
For use in tub, shower,
or bedside basin.
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Therabath 1 gallon 4 S103-1G $33.60 $8.40 16763
Lotion-based herbal- 16 oz. 12 S103-16Z $20.65 $1.72
fragranced, gentle 8 oz. 24 S103-8Z $21.12 $0.88 22975 16764
cleanser for body, hair, 4 oz. 24 S103-4Z $14.88 $0.62
and hands. Contains
odor-reducing ingredients,
is pH buffered, and is
non-alkaline. For use
in tub, shower, or bedside
basin.
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Hospi Bath 1 gallon 4 S104-1G $24.00 $6.00
Economical, gentle hair, 8 oz. 24 S104-8Z $14.40 $0.60
body, and hand cleanser.
Contains a gentle surfactant
system with a pleasing
fragrance.
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Three to One Concentrate 1 gallon 4 S105-1G $42.00 $10.50 16705
Economical yet top quality
hair and body cleanser.
Becomes more viscous when
diluted with water at a
3:1 ratio.
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Antibacterial Soap 1 gallon 4 S109-1G $20.60 $5.15 22976 16695
Specifically formulated 800 ml bag 12 S109-800ML $24.75 $2.06 15603
to address the need for 16 oz. 12 S109-16Z $19.35 $1.61 16694
an effective, yet 8 oz. 24 S109-8Z $18.24 $0.76 16696
gentle, hand soap to aid 4 oz. 24 S109-4Z $13.92 $0.58
in the reduction of
nosocomial infections in
institutional environments.
Effective against both
gram-negative and
gram-positive organisms
(including MRSA), as well
as yeast and fungus.
PRODUCT SIZE UNITS/CASE CATALOG NO. CASE PRICE UNIT PRICE BEACH # GSMS #
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SKIN PROTECTION /
INCONTINENCE PRODUCTS
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Dermagran(R)Ointment 4 oz. tube 12 DT-4 $99.10 $8.26 13636
For stage I and II pressure 4 oz. jar 12 DG-4 $99.10 $8.26 13635
sores and preventive skin
care.
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Dermagran(R)Moisturizing Spray 4 oz. 12 DM-4 $60.00 $5.00 13625
For stage I pressure sores,
abrasions, and preventive
skin care.
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Dermagran(R)Tri-Zinc 8 oz. 12 D1W-8 $21.71 $1.81 13631
Incontinent Wash
(NutraWash(TM))
For perineal care
associated
with incontinence.
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NutraShield(TM)Perineal 3.5 oz 12 ND-35 $61.56 $5.13
Protectant
A protective long lasting
perineal barrier ointment
for perineal care associated
with
incontinence. Do not apply
to broken skin.
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In Between(R)Perineal 1 gallon 4 S201-1G $25.00 $6.25 21865 16766
Spray Skin Cleanser 8 oz. 24 S201-8Z $20.54 $0.86 21881 16765
Versatile product for the 4 oz. 24 S201-4Z $17.28 $0.72
quick and effective clean
up of all body
exudates, particularly
those from incontinent
episodes. Eliminates odor
from urine and feces
while cleansing the entire
perineal skin area. Can
be sprayed directly on the
skin, soil mass, clothing,
bed linens, floors, walls,
furniture, carpets, and
any other surface that
needs to be clean and free
of odors. Leaves no soap
film and does not require
rinsing.
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MPH Ointment Perineal 4.8 oz. Pump 12 S205-5Z $25.92 $2.16 16767
Moisture Barrier 2 oz. Jar 12 S205-2Z $15.17 $1.26 22977 16771
Use as a moisture barrier
on external skin areas
where repeated
exposure to body excrements
and exudates may cause skin
breakdown. Contains
allantoin and aloe xxxx
gel. May be used as skin
barrier on friction points.
SKIN CONDITIONER/MOISTURIZERS
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Hydro-Soft 1 gallon 4 S301-1G $30.40 $7.60 24098 16703
Concentrated blend of 8 oz. 24 S301-8Z $20.05 $0.84 63018
skin emollients and
gentle skin cleansers
for use in whirlpool
bathing and hydro-therapy
units.
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Optima Bath Additive 1 gallon 4 S305-1G $48.92 $12.23 22978 16700
Use as a bath additive, 8 oz. 24 S305-8Z $30.43 $1.27 16704
after-bath moisturizer,
or as a primary
bathing agent. Contains
a mineral oil base with
acetylated lanolin
alcohol (fatty
alcohol), as well as an
agent that disperses the
oil evenly in the water.
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Skin Care Lotion 1 gallon 4 S401-1G $23.00 $5.75 21882 16768
Greaseless, urea-based 16 oz. 12 S401-16Z $14.40 $1.20
hand and body lotion for 8 oz. 24 S401-8Z $10.08 $0.42 21883 16772
dry, overworked 4 oz. 24 S401-4Z $9.36 $0.39 16721
skin. Available with or
without the honey almond
fragrance.
PRODUCT SIZE UNITS/CASE CATALOG NO. CASE PRICE UNIT PRICE BEACH # GSMS #
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DISINFECTANT AND CLEANSER
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Hardsurface/Whirlpool 1 gallon 4 S511-1G $40.80 $10.20 22979 16702
Detergent/Disinfectant 16 oz. 12 S511-16Z $21.60 $1.80 21154
Designed specifically for
hard surface cleaning and
whirlpool units. One
ounce per gallon of
water has been proven
effective as a
bactericide, mildewstat,
sanitizer, virucide,
and fungicide.
Destroys some of the most
problematic organisms
including MRSA and HIV.
HAND SANITIZER
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Mysotrol(R)No Rinse Hand 800 ml bag 12 S505-800ML $26.88 $2.24 15058
Sanitizer 16 oz. 12 S505-16Z $23.04 $1.92 15057
Provides germicidal and 4 oz. 24 S505-4Z $16.32 $0.68 23929 15051
virucidal action in seconds,
meets OSHA protocol for a
healthcare personnel handwash,
and reduces the risk of
nosocomial infections. Clear
gel with ethyl alcohol as
active ingredient.
SUNDRIES
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Empty Bottles:
Bathe Away 8 oz w/ snap cap 8 oz 1 S101-8MT $0.30 $0.30
Swash 8 oz w/ snap cap 8 oz 1 S102-8MT $0.30 $0.30 16087
Therabath 8 oz w/ snap cap 8 oz 1 S103-8MT $0.30 $0.30
ApriVera 16 oz w/ pump 16 oz 1 S107-16MT $0.75 $75.00 15561
ApriVera 8 oz w/ snap cap 8 oz 1 S107-8MT $0.30 $0.30 23840 16016
Antibacterial Soap 16 oz w/
pump 16 oz 1 S109-16MT $0.75 $0.75
Antibacterial Soap 8 oz w/
snap cap 8 oz 1 S109-8MT $0.30 $0.30 16085
In Between 8 oz w/ sprayer 8 oz 1 S201-8MT $0.50 $0.50 23841 20148
Hydro Soft 8 oz w/ snap cap 8 oz 1 S301-8MT $0.30 $0.30
Optima 8 oz w/ snap cap 8 oz 1 S305-8MT $0.30 $0.30 33058
Skin Care Lotion 16 oz w/
pump 16 oz 1 S401-16MT $0.75 $0.75
Skin Care Lotion 8 oz w/
snap cap 8 oz 1 S401-8MT $0.30 $0.30
Wall Mount Dispensers and
Brackets:
PressPak 800 ml Dispenser -
Xxxxxxx Logo 800 ml 12 IP800 $0.00 $0.00
Triad 9350 Bulk Dispenser 50 oz 1 I9350 $14.35 $14.35
Translucent Bulk Dispenser 30 oz 1 I402 $6.90 $6.90
Chrome Bracket for Gallon
Bottles gallon 1 I801 $0.00 $0.00 1801
Pumps and Sprayers:
Gallon Pump 1 I901-1Z $2.00 $2.00 90112
Pump for 16 oz 1 P28-410 $0.85 $0.85
Pump for 8 oz 1 NW-28-410P $0.45 $0.45
Sprayer for 8 oz 1 24-410SP $0.30 $0.30
