NOW, THEREFORE, in consideration of the promises hereinafter made by the parties hereto, it
is agreed as follows:
Notice of Privacy Practices
APPOINTMENT OF PROVIDER
1. Distribution Right. The Company hereby appoints and grants Provider the exclusive and non- assignable right to sell the product of the Company ("Product") listed in the then current "Price List" (Exhibit "A" attached hereto).The distribution right shall be limited to customers who have places of business in, and will initially use the Company's products in the geographic area set forth in Exhibit "B" attached hereto.
2. Prices. All prices stated are FOB the Company's ofﬁces in Atlanta, Georgia. Prices do not include transportation costs which shall be borne by Provider. Prices do not include federal, state or local taxes applicable to the products sold under this Agreement. An amount equal to the appropriate taxes will be added to the invoice by the Company where the Company has the legal obligation to collect such taxes. Provider shall pay such amount to the Company unless Provider provides Company with a valid tax exemption certiﬁcate authorized by the appropriate taxing authority.
3. Terms. Terms are net cash upon delivery, except where satisfactory credit is established in which case terms are net thirty (30) days from date of delivery.The Company reserves the right to revoke any credit extended at the Company's sole discretion. Provider agrees to pay such invoices when due regardless of other scheduled deliveries. Invoices not paid within thirty (30) days of the invoice date will have one and one-half percent (1.5%) per month ﬁnance charge assessed against the unpaid balance from the date of invoice until the date of payment.
4. Provider Responsibilities. Under the terms of this Agreement, Provider shall comport with the following mandatory requirements:
(a) Provider further agrees to ensure infusions are conducted in a clean room, such that would meet the professional and ethical standards required by a physician under any other circumstances. Each room designated for service must be equipped with infusion stands, infusion syringes, and emergency/ﬁrst aid kits.
(b) Provider shall conduct standard medical prescreening processes of both the patient as well as patient’s medical history.
(c) IV therapy trained/certiﬁed nurse, who will mix the infusion solutions prior to the patient’s arrival, after which Provider has twenty-four (24) hours to utilize the solution.The IV therapy certiﬁed nurse will administer said solution.
5.Title to Product.The Company hereby reserves a purchase money security interest in each unit of Product sold or to be sold under this Agreement and in the proceeds thereof, if Provider shall have sold or leased a unit(s) to another party prior to Provider paying Company the purchase price for such Unit as set forth herein, in the amount of such unit's purchase price.These interests will be satisﬁed by payment in full. A copy of this Agreement may be ﬁled with the appropriate authorities at any time after the signature by the Company as a ﬁnancing statement in order to perfect the Company's security interest. On the request of the Company, Provider shall execute ﬁnancing statement(s) and other instruments the Company shall desire to perfect a security interest in the Product for its purchase price. Title to the Product shall pass to Provider upon receipt by the Company of payment in full for all amounts due for such units of Product.
6. No Competitive Product. Provider agrees not to represent or sell other products which are deemed to be competitive with the Company's Product unless agreed to by the Company by written notice. Company shall use its best judgment when determining whether other products are considered competitive.
MARKETING AND SUPPORT
1. Sales. Provider shall use its best efforts to promote the sale and distribution of the Product and to provide adequate support, and such efforts shall include the following:
(a) Establishing and maintaining appropriate, attractive and accessible premises and facilities for the display and demonstration of Product;
(b) Provide an adequate, trained sales and technical staff to promote the sale and support of the Product;
(c) Undertake promotional campaigns and canvas prospective users to stimulate the sales of Product;
(d) Provide Company with forecasts every month of its probability requirements for the next six months for Product and accessories, such forecasts to be in such manner and on forms to be speciﬁed by Company and agreed to by Provider.
2. Advertising. Company shall, upon request, assist the Provider on all advertising, sales promotion, and public relations campaigns to be conducted, including providing Provider with documentation of previous promotional campaigns conducted in connection with the Product, and shall provide necessary technical information and assistance.
3. Training. Company shall furnish training of Provider's sales and technical representatives at various times and locations as shall be designated for this purpose by Company. Enrollment in training courses shall be limited to a reasonable number of persons who shall be sufﬁciently qualiﬁed to take the courses. Provider shall pay the salaries and all travel and lodging expenses and subsistence of its representatives.
1. Purchase Orders. Provider shall order Product by written notice to Company. Each order shall specify the number of units to be shipped, the type of units to be shipped (as identiﬁed by Company model number designations indicated in the Price List) including all optional features, the desired method of shipment and the installation site.All orders must be placed using Company’s order form, and faxed to the Company pharmacy. Company shall indicate its acceptance of such release by returning a signed copy to Provider. Company agrees to ship units to Provider as close as possible to the delivery schedule set forth in each order as accepted by Company, unless Company otherwise indicates in writing. Company shall not be required to honor any release which: (a) speciﬁes a shipping date earlier than Company's then current delivery schedule for the date such release is received by Company and/or (b) speciﬁes a quantity to be delivered in any one month within the current delivery schedule which is greater than one hundred percent (100%) of the total quantity shipped in the preceding sixty (60) day period.
2. Product Acceptance. The criterion for acceptance of Company Product by Provider shall be the successful operation of the Product using Company's standard test procedures and diagnostic test programs applicable to the Product involved.
3. Shipment. As an initial matter, deliveries for Company’s Product are scheduled for Tuesdays and Thursdays. Company reserves the right to add, delete or change delivery shipment dates at its discretion. All shipments of Product shall be made FOB destination point, and liability for loss or damage in transit shall be borne by the Company, until said liability for loss or damage shall shift to Provider upon Company's delivery of Product to Provider. Shipping dates are approximate and are based, to a great extent, on prompt receipt by Company of all necessary ordering information from Provider. Patient-speciﬁc infusions will be delivered ﬁve (5) days following the receipt of patients initial order form. Provider shall bear all costs of transportation and insurance and will promptly reimburse Company if Company prepays or otherwise pays for such expenses. Company shall not be in default by reason of any failure in its performance under this Agreement if such failure results from, whether directly or indirectly, ﬁre, explosion, strike, freight embargo,Act of God or of the public enemy, war, civil disturbance, act of any government, dejure or de facto, or agency or ofﬁcial thereof, material or labor shortage, transportation contingencies, unusually severe weather, default of any other manufacturer or a supplier or subcontractor, quarantine, restriction, epidemic, or catastrophe, lack of timely instructions or essential information from Provider, or otherwise arisen out of causes beyond the control of the Company. Nor
shall the Company at any time be liable for any incidental, special or consequential damages.
4. Cancellation. Provider may, at any time prior to the scheduled date of shipment, cancel any or all Products on order upon giving timely written notice. Prior to cancellation, Provider shall have an afﬁrmative preliminary duty to make every reasonable effort to repurpose any Product(s) ordered, providing the repurposing is medically feasible and acceptable. Nothing in this Agreement shall permit or require a Provider to substitute patients for unclaimed infusions, which have been speciﬁcally formulated for another patient.
1. Use of Company Name. Company expressly prohibits any direct or indirect use, reference to, or other employment of its name, trademarks, or trade name exclusively licensed to Company, except as speciﬁed in this Agreement or as expressly authorized by Company in writing. All advertising and other promotional material will be submitted to Company at least two weeks in advance and will only be used if Company consents thereto, which consent shall not be unreasonably withheld. Company hereby authorizes and requires Provider's use of the Company's insignia or lettering which will be on the products at the time of the delivery. Company hereby authorizes the Provider's use of the legend set forth below.The Company shall submit to the Provider in writing full particulars prior to any use of the authorized legends, on stationery, in- voices, promotion material or otherwise, and shall not proceed with such use unless and until the Company's written approval shall have been received.Authorized legend shall be the following:
DripFusion Enterprises, Inc.
If the authorized legend is used on any stationery, invoices, promotion material or otherwise by Provider, Provider will, on termination of this Agreement, or upon request of Company, discontinue the use of such legend on any stationery, invoices, promotion material or otherwise and thereafter will not use, either directly or indirectly in connection with its business, such legend or any other names, titles of expressions so
nearly resembling the same as would likely lead to confusion or uncertainty, or to deceive the public.
2. Patent Indemnity. Company agrees, at its own expense, to indemnify, defend and hold harmless each Provider and its customers from and against every expense, damage, cost and loss (including attorneys' fees incurred) and to satisfy all judgments and decrees resulting from a claim, suit or proceeding insofar as it is based upon an allegation that the Product or any part thereof furnished by Company or any process which is practiced in the customary use of the Product is or has been infringing upon any patent, copyright or proprietary right, if Company is notiﬁed promptly of such claim in writing and given authority, and full and proper information and assistance (at Company's expense) for the defense of same. In case the Product, or any part thereof, in such suit is held to constitute an infringement and the use of said Product or part is enjoined, Company shall, in its sole discretion and at its own expense, either procure for the indemnitee the right to continue using said Product or part or replace or modify the same with nonperformance or capacity or affect its compatibility with the hardware or ﬁrmware comprising the Product or the software utilized thereon.
3. Drawings and Data.The Company normally supplies all necessary data for the proper installation, test, operation and maintenance of its Product. Portions of this data are proprietary in nature and will be so marked.The Provider agrees to abide by the terms of such markings and to be liable for all loss or damage incurred by the Company as a result of the improper or unauthorized use of such data.The Company retains for itself all proprietary rights in and to all de- signs, engineering details, and other data pertaining to any Product speciﬁed in the contract and to all discoveries inventions, patent rights, etc., arising out of work done in connection with the contract and to any and all Product developed as a result thereof, including the sole right to manufacture any and all such products.The Provider shall not contact the Company's suppliers, or any other person, for the purpose of manufacture.
4. Title to Products and Documentation Package. Provider acknowledges that the Product and documentation listed in Exhibit A are the property of Company, and that the products are being made available to Provider in conﬁdence and solely on the basis of its conﬁdential relationship to Company, Provider agrees not to print, copy, provide or otherwise make available, in whole or in part, any portion of an original or modiﬁed Product Documentation Package or related materials.
1. Product Warranty. Company warrants that Provider shall acquire Product purchased hereunder free and clear of all liens and encumbrances except for Company's purchase money security interest deﬁned in Articles I, 4, above. Company further warrants all Products to be free from defects in material or workmanship under normal use and service for a period of twenty-eight (28) days (the “shelf-life”), from the date of delivery. All repair covered by this warranty must be done at Company's factory, or other such warranty repair facilities of Company as designated by Company unless Company speciﬁcally directs that this service be performed at another location.Any defect corrected within the shelf-life and found to be within this scope of the warranty.
Defective product will be repaired by Company and all charges for labor and material, will be borne by Company. If it is determined that either no fault exists in Company, or the damage to be repaired was caused by negligence of Provider, its agents, employees or customers, Provider agrees to pay all charges associated with each such repair. THIS CONSTITUTES THE SOLE WARRANTY MADE BY COMPANY EITHER EXPRESSED OR IMPLIED. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED WHICH EXTEND BEYOND THE FACE HEREOF, HEREIN, INCLUD- ING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICU- LAR PURPOSE. IN NO EVENT SHALL COMP ANY BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES AND PROVIDER'S REMEDIES SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF NONCONFORMING UNITS OR PARTS.
2. Misuse of Product. Any tampering, misuse or negligence in handling or use of Product renders the warranty void. Further, the warranty is void if, at any time, Provider attempts to make any internal changes to any of the components of the Product; if at any time the power supplied to any part of the Product exceeds the rated tolerance; if any external device attached by Provider creates conditions exceeding the tolerance of the Product; or if any time the serial number plate is removed or defaced. OPERATION OF THE PRODUCT THAT RENDERS THIS WAR- RANTY VOID WILL BE
DEFINED TO INCLUDE ALL OF THE POSSIBILITIES DESCRIBED IN THIS PARAGRAPH, TOGETHER WITH ANY PRACTICE WHICH RESULTS IN CONDITIONS EXCEEDING THE DESIGN TOLERANCE OF THE PRODUCT.
Spares, as used herein, shall be deﬁned as Company's standard subassemblies and parts used to fabricate and/or repair the Product manufactured by the Company. Company shall make spares for purchase by Provider for a period of not less than ﬁve (5) years after shipment of the last unit to Provider hereunder. Such spares will be available to Provider at prices, terms and conditions in effect at the time such spares are purchased. No provision in this Paragraph, or in any other part of this Agreement, shall relieve Provider of Provider's responsibility to stock spares. Provider is expected to maintain an adequate inventory of spares to support the Product purchased hereunder.
DURATION OF AGREEMENT
1.Term.The term of this Agreement shall be for one (1) year from the date hereof, unless soon- er terminated.Termination shall not relieve either party of obligations incurred prior thereto.
2.Termination.This Agreement may be terminated only:
(a) By either party for substantial breach of any material provision of this Agreement by the other, provided due notice has been given to the other of the alleged breach and such other party has not cured the breach within thirty (30) days thereof; or
(b) By the Company if: there is an unacceptable change in the control or management of the Provider; if the Provider ceases to function or makes an assignment for the beneﬁt of creditors; if a petition in bankruptcy is ﬁled by or against the Provider, resulting in an adjudication of bankruptcy; or, if the Provider fails to pay its debts as
they become due and provided due notice has been given by the Company to the Provider and the Provider has not cured such breach within thirty (30) days thereof;
(c) By either party for any reason provided the terminating party gives sixty (60) days advanced written notice of its intention to so terminate;
(d) Upon termination of this Agreement all further rights and obligations of the parties shall cease, except that Provider shall not be relieved of (i) its obligation to pay any monies due, or to become due, as of or after the date of termination, and (ii) any other obligation set forth in this Agreement which is to take effect after the date of termination. Provider shall have the right to continue to purchase spare parts in accordance with Article VI.
1. Notice or Communication. Any notice or communication required or permitted hereunder (other than Administrative Notice) shall be in writing and shall be sent by registered mail, return receipt requested, postage prepaid and addressed to the addresses set forth below or to such changed address as any party entitled to notice shall have communicated in writing to the other party. Notices and communications to Company shall be sent to:
2276 Cherokee Valley Dr. Lithonia, GA 30058
Notices and communications to Provider shall be sent to Provider’s address shown on ﬁrst page of this Agreement. Any notices or communications to either party hereunder shall be deemed to have been given when deposited in the mail, addressed to the then current address of such party.
2. Date of Effectiveness. Any such notice or communication so mailed shall be deemed delivered and effective seventy-two (72) hours after mailing thereof in the United States.
1. Relationship of Parties. The relationship between the parties established by this Agreement shall be solely that of vendor and vendee and all rights and powers not expressly granted to the Provider are expressly reserved to the Company.The Provider shall have no right, power or authority in any way to bind the Company to the fulﬁllment of any condition not herein contained, or to any contract or obligation, expressed or implied.
2. Independence of Parties. Nothing contained in this Agreement shall be construed to make the Provider the agent for the Company for any purpose, and neither party hereto shall have any right whatsoever to incur any liabilities or obligations on behalf or binding upon the other party. The Provider speciﬁcally agrees that it shall have no power or authority to represent the Company in any manner; that it will solicit orders for products as an independent contractor in accordance with the terms of this Agreement; and that it will not at any time represent the Company in any manner; that it will solicit orders for products as an independent contractor in accordance with the terms of this Agreement; and that it will not at any time represent orally or in writing to any person or corporation or other business entity that it has any right, power or authority not expressly granted by this Agreement.
3. Indemnity. The Provider agrees to indemnify and hold the Company free and harmless from any and all claims, damages, and expenses of every kind or nature whatsoever (a) arising from acts of the Provider (including negligent and malfeasant acts), which shall extend to act of Provider’s employees, ofﬁcers, agents, contractors, and heirs; (b) as a direct or indirect consequence of termination of this Agreement in accordance with its terms; or (c) arising from acts of third parties in relation to products sold to the Provider under this Agreement, including, but not limited to execution of liens and security interests by third parties with respect to any such products.
4.Assignment.This Agreement constitutes a personal contract and Provider shall not transfer or assign same or any part thereof without the advance written consent of Company.
5. Entire Agreement. The entire Agreement between the Company and the Provider covering the Product is set forth herein and any amendment or modiﬁcation shall be in writing and shall be executed by duly authorized representatives in the same manner as this Agreement.
6. Severability. The provisions of this Agreement shall be severable, such that if any one or more such provisions are determined to be illegal or otherwise unenforceable, in whole or in part, under the laws of any jurisdiction, the remaining provisions or portions hereof shall, nevertheless, be binding on and enforceable by and between the parties hereto. Any provisions, terms or conditions of Provider's Purchase Orders which are, in any way contradicting of this Agreement, except those additional provisions specifying quantity and shipping instructions, shall not be binding upon Company and shall have no applicability to the sale of goods by Company to Provider.
7. Applicable Law. This Agreement shall be governed by the laws of the State of Georgia.. Company's rights granted hereby are cumulative and in addition to any rights it may have at law or equity.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of the date and year indicated above.