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HDSPA RETAIL 101812
Purchase Agreement - Retail
THIS H. D. SMITH
Choose an item. PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of Click here to enter a
date., (“Effective Date”) by and between H. D. SMITH WHOLESALE DRUG CO., a Delaware corporation with its principal place of business at 3063 Fiat
Avenue, Springfield, Illinois 62703 (hereinafter “H. D. Smith”) and Ithe Kentucky Pharmacists Association, Inc. on behalf of and as agent for, the
Commonwealth of Kentuckythe Kentucky Pharmacists Association, Inc. on behalf of and as agent for, the Commonwealth of Kentuckythe
Kentucky Pharmacists Association, Inc. on behalf of and as agent for, the Commonwealth of Kentucky, a[n] Non-Profit CorporationNon-Profit
Corporation with its principal place of business at 1228 US 127 South, Frankfort, Kentucky 406011228 US 127 South, Frankfort, Kentucky 40601
(hereinafter “Purchaser”).
WHEREAS, H. D. Smith is a pharmaceutical wholesaler engaged in the business of providing pharmaceutical and other products to retail customers for use
by end users; and
WHEREAS, Purchaser buys, holds and distributes pharmaceutical products on behalf of and as agent for the Commonwealth of Kentucky (the “State”) for
the State’s emergency response initiatives (collectively, the “Programs”) which desires to enter into an agreement wherein H. D. Smith will serve as a
supplier of pharmaceutical products, pharmaceutical items, home health care products and over the counter merchandise to Purchaser based on a “standing
order” that is updated upon mutual agreement of H.D. Smith and Purchaser from time to time and fulfilled by H. D. Smith upon notice from Purchaser based
on Program need;
NOW, THEREFORE, in consideration of the mutual obligations and promises herein expressed, and for other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, H. D. Smith and Purchaser (each a “Party” and, collectively, the “Parties”) agree as follows:
1.
Duties of the Parties. H. D. Smith hereby agrees to supply certain pharmaceutical products, pharmaceutical items, over the counter items and health
and beauty aids (collectively “Products”) from time to time hereunder. Purchaser hereby agrees to order Products from H. D. Smith and to pay for said
Products in accordance with this Agreement. 9595% %
2.
Term of Agreement. Subject to the termination provisions set forth below, the term of this Agreement will commence on the Effective Date and end on
July 1, 2014July 1, 2014. Thereafter, this Agreement will automatically renew for successive periods of one (1) year, unless either Party gives notice of
non-renewal to the other Party not less than ninety (90) days prior to the expiration of the initial term or any current renewal term.
3.
Purchases.
a) Orders. Purchaser shall submit purchase orders for Products to H. D. Smith in accordance with this Agreement. H. D. Smith shall deliver
Products ordered by Purchaser (to the extent H. D. Smith has the Products in inventory for allocation to Purchaser) CIF (Cost-of-Goods,
Insurance, and Freight) to the facility, and at the address set forth in the purchase order. The number of deliveries per week and delivery times and
cut-offs will be as set forth on Exhibit A.
b)
c)
d)
4.
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H. D. Smith reserves the right to charge a $10.00
processing fee for each CII order, after the first two (2), placed using a DEA 222 form rather than H. D. Smith's controlled substance online
ordering system ("CSOS").
Standing Order. H. D. Smith acknowledges that Products purchased hereunder will be used by Purchaser for purposes of the Programs and that
the prompt availability and expedient delivery of the Products for the Programs is of critical importance. For this reason, H. D. Smith and
Purchaser will develop and maintain a “Standing Order” of Products that H. D. Smith will process and deliver to a location in the State within 24
hours of Purchaser notice. The Standing Order will be updated by agreement of the Parties from time to time.
Returned Goods. H. D. Smith will process returned Products in accordance with H. D. Smith’s then applicable Return Goods Policy, a copy of
which will be provided to Purchaser at Purchaser’s request. H. D. Smith reserves the right to revise its Return Goods Policy from time to time, with
notice to Purchaser.
Suspension. Purchaser hereby agrees and understands that H. D. Smith may at any time and from time to time, and for any length of time,
cancel all or any part of any delivery and suspend all or any part of any order (whether in route or otherwise) and reclaim all or any part of any
delivery made, if H. D. Smith determines in its sole discretion and in good faith that the sale or delivery of such Product may be contrary to or
violate any H. D. Smith policy related to own use or compliance requirements any law or regulation or any agreement with any governmental
authority. In the event that H. D. Smith in its sole discretion authorizes deliveries on such terms as it may determine after any such
cancellation, suspension or reclamation, such shall not constitute a waiver of this paragraph for any future enforcement purposes.
Pricing.
a) Wholesale Acquisition Cost (“WAC”). WAC is defined as manufacturer’s list cost to H. D. Smith on quantities normally ordered by H. D. Smith
at the time shipped to Purchaser, exclusive of discounts and/or any other special consideration from the manufacturer.
b) Branded Products. Pricing for branded pharmaceutical Products will be 100% of WAC minus or plus the discount set forth in Exhibit B.
c) Specially Priced Products. Notwithstanding the foregoing, the price for all specially priced Products will be as defined below in this Section, as
set forth on Exhibit B or as set forth from time to time by H. D. Smith effective at the time of purchase (“Specially Priced Products”). Specially Priced
Products are not eligible for any discount.
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Net Merchandise Products. “Net Merchandise Items” are Specially Priced Products that include, but are not limited to, slow moving
products, special handle products, drop ship products, specialty products, home healthcare products, durable medical equipment, third party
contracted products, products acquired by H. D. Smith from vendors not offering customary cash discounts or other terms, fixtures and other
accessories. Pricing for Net Merchandise Items will equal the net price set forth from time to time by H. D. Smith effective at the time of
purchase.
ii.
PharmaGen Program Products. Pricing for products included on the PharmaGen Program (as defined below) will be equal to the price
listed on the PharmaGen Program.
d) Contract Pricing. H. D. Smith agrees to administer third party contracts for Purchaser if applicable, provided that Purchaser, or an appropriate
representative of such third party contract, provide H. D. Smith a copy of new third party contracts forty five (45) days prior to its effect. Purchaser,
or an appropriate representative of such third party contract, shall provide H. D. Smith written notice of any change to existing third party contracts
five (5) business days prior to the effective date of any change.
e) Rebates. See Exhibit C for rebates if applicable. Purchaser shall not be entitled to receive any rebate unless Purchaser is current in all payments
due to H. D. Smith and compliant with all terms and conditions of this Agreement.
f)
Discounts. H. D. Smith has no duty to pass through any rebate or discount to Purchaser.
i.
5.
Payment Terms.
a) Payment Date. The purchase price for Products shall be, in part, based on Purchaser’s selected payment term and the use of Electronic Funds
Transfer (“EFT”) or check for payment. If EFT is used, EFT may be initiated by Purchaser or H. D. Smith.
b) Prepay Terms: Advance payments for all prepay options will be reviewed and reconciled semi-annually based on actual purchases made for the
preceding three month period. Purchaser agrees to increase the advance payment if actual purchases for the preceding three month period exceed
the amount used in estimating the advance payment on deposit with H. D. Smith at that time. H. D. Smith agrees to refund the amount of the
advance payment if actual purchases for the preceding three month period are less than the amount used in estimating the advance payment on
deposit with H. D. Smith at that time. Adjustments to the advance payment amount will be completed within 20 days from the date notice is given by
H. D. Smith to Purchaser.
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Monthly Prepay. For the Monthly Prepay to apply, H. D. Smith requires an advance payment of one month’s purchases based on average
volume. Payment is due prior to the first day of the month in which the prepayment terms take effect. All prepayment amounts will be credited
as a non-interest bearing deposit. Invoices shall be paid as follows: purchases made from the 1st of the month to the last day of the month
are due via EFT or check before 12:00 pm CST, on the 10th of the following month.
Semi-Monthly Prepay. For Semi-Monthly Prepay, H. D. Smith requires an advance payment of 15 days of purchases based on average
volume. Payment is due prior to the first day of the month in which the prepayment terms take effect. All prepayment amounts will be credited
as a non-interest bearing deposit. Invoices shall be paid as follows: purchases made from the 1st of the month to the 15th of the month are
due via EFT or check before 12:00 p.m. CST, on the 25th of the current month and purchases made from the 16th of the month to the last
day of the month are due via EFT or check before 12:00 p.m. CST, on the 10th of the following month.
Weekly Prepay. For Weekly Prepay, H. D. Smith requires an advance payment of seven days of purchases based on average volume.
Payment is due prior to the first day of the month in which the prepayment terms take effect. All prepayment amounts will be credited as a
non-interest bearing deposit. Invoices shall be paid as follows: Purchases made during the week are due the following Wednesday via EFT
or check before 12:00 CST.
Non Prepay Terms:
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b)
c)
Weekly Pay. For Weekly Pay, no advance payment is required. Invoices shall be paid as follows: purchases made during the week (Sunday
through Saturday) are due the following Friday via EFT or check before 12:00 pm CST.
Semi-Monthly Pay. For Semi-Monthly Pay, no advance payment is required. Invoices shall be paid as follows: purchases made from the 1st
of the month to the 15th of the month are due via EFT or check before 12:00 pm CST, on the 25th of the current month and purchases made
the 16th to the last day of the month are due via EFT or check before 12:00 p.m. CST, on the 10th of the following month.
Monthly Pay. For Monthly Pay, no advance payment is required. Invoices shall be paid as follows: purchases made during the month are
due via EFT or check before 12:00 p.m. CST, on the 10th of the following month.
Extended Pay. For Extended Pay, no advance payment is required. Invoices shall be paid as follows: purchases made from the 1st of the
month to the 15th of the month are due via EFT or check before 12:00 p.m. CST on the 10th of the following month and purchases made the
16th to the last day of the month are due via EFT or check before 12:00 p.m. CST on the 25th of the following month.
Weekends and Holidays. If any payment or advance payment due date is on a Saturday, Sunday or legal holiday when banks in Springfield,
Illinois are closed, the payment or advance payment will be due on the closest business day prior to the payment or advance payment due date.
Late Payment Charge. Purchaser hereby agrees to pay a late fee of 2% of the invoice amount if payment is not made within fifteen days of
the invoice date and a monthly service charge of 1.5% on any past due balance as of the end of any billing period, or the maximum allowed by
law, whichever is less.. Purchaser further agrees to pay any and all costs and expenses incurred by H. D. Smith (including, without limitation,
reasonable attorneys’ fees) in connection with collecting amounts due to H. D. Smith. Charges subject to reasonable dispute by Purchaser shall
not be assessed late payment charges.
d) Purchaser as Agent for State Programs. H. D. Smith acknowledges that Purchaser purchases, holds and distributes
pharmaceutical products for the Programs on behalf of and as agent for the State. . Suspension. H. D. Smith hereby reserves the
right at any time to suspend credit or to change credit terms provided herein if: (i) Purchaser makes an assignment for the benefit of
creditors, a receiver, or trustee in bankruptcy of its property or business; (ii) Purchaser is adjudicated bankrupt; or (iii) Purchaser has failed
to make payment in accordance with this Section. Upon the occurrence of either (i), (ii) or (iii), H. D. Smith shall be entitled to suspend or
discontinue the shipment of any additional orders to Purchaser.
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6.
Ordering System. If H. D. Smith provides Purchaser with access to H. D. Smith’s web based ordering system, OrderBase Xpress, it shall do so at no
additional charge and Purchaser agrees to electronically submit purchase orders to H. D. Smith using OrderBase Xpress. If H. D. Smith provides
Purchaser with electronic equipment (“Equipment”) for use with OrderBase Xpress the Equipment shall remain the property of H. D. Smith at all times.
Within thirty days from the Purchaser no longer using OrderBase Xpress or H. D. Smith as a wholesaler, Purchaser shall return all Equipment provided.
If Purchaser fails to return any Equipment, Purchaser agrees to pay H. D. Smith the market value of each piece of Equipment not returned. In
connection with Purchaser’s use of OrderBase Xpress, H. D. Smith shall make available to Purchaser Xpress Reports and My Account.com for
reporting and account information at no additional charge. Custom reports requested by Purchaser may require an additional fee to be determined by
H. D. Smith. Purchaser shall be responsible for all hardware, software and internet connections necessary to utilize OrderBase Xpress and to access
Xpress Reports.
7.
Third Party Network Programs. Purchaser agrees to participate in and complete the necessary enrollment forms for the H. D. Smith Third Party
Network programs selected below.
☐ Third Party Network: $125/month
Third Party Network establishes payor agreements for specified networks and provides a helpdesk
and reimbursement support.
☐ Reconciliation: $99/month
Reconciliation electronically reconciles dispensed claims to paid claims and offers a chase
program to track underpaid and unpaid claims.
☐ Electronic Funds Transfer: $20/month
Electronic Funds Transfers (EFT) provides direct deposit for Medicare Part D and specific
commercial plans.
☐ Patient Safety Program: $15/month
H. D. Smith’s program that provides compliance with the CMS requirement for a patient safety
program.
8.
Generic Formularies. Purchaser may participate in all H. D. Smith generic formularies and applicable programs including, without limitation, becoming
a member of applicable H. D. Smith’s PharmaGen programs. The PharmaGen Program is defined as and includes all generic formulary programs
offered by H. D. Smith containing Products at prices set by H. D. Smith.
9.
Confidentiality. Purchaser and H. D. Smith agree that the terms and conditions of this Agreement shall remain confidential except that Purchaser may
disclose such information to the State as necessary for administration of the Programs and for Purchaser to serve as agent of the State hereunder.
Subject
to
the
foregoing,
neither
Purchaser
nor
H. D. Smith will distribute this Agreement or reveal any terms of this Agreement, including, but not limited to, pricing to parties other than employees or
agents, unless required by law. Purchaser recognizes that it may acquire confidential business information and Purchaser agrees to keep all
confidential information of this nature in a secure place and not (except as provided in this section) to publish, communicate, use or disclose, directly or
indirectly, for its own benefit or for the benefit of another, either during or after contract performance, any confidential information.
10. Expiration Dating. H. D. Smith agrees to ship Products with not less than six (6) months shelf life remaining, unless the Products are manufactured
with a limited shelf life of less than seven (7) months, in which case such Products will be shipped per manufacturer’s guidelines.
11. Product and Shelf Stickers. H. D. Smith will make initial individual product and shelf stickers available to each facility of Purchaser. Purchaser will be
responsible for providing H. D. Smith the necessary information for the preparation of the stickers.
12. Own Use. Product purchased by Purchaser from H. D. Smith shall only be sold or dispensed directly through the Programs to the ultimate consumer
and shall not be resold to any wholesalers, distributors, repackagers or other re-sellers of any kind.
13. Disclaimer. Notwithstanding anything to the contrary contained herein, Purchaser acknowledges and agrees, on behalf of itself and each of
its affiliates, that H. D. Smith is not the manufacturer of any Products. H. D. Smith (on behalf of itself and its affiliates) disclaims all
warranties, express or implied, including those of merchantability, non-infringement and fitness for a particular purpose, and no oral or
written information provided by H. D. Smith or its affiliates or their respective employees or other representatives have created or will create
any warranty. In no event will H. D. Smith or its affiliates be liable for any claims, causes of action, obligations, liability, debts, judgments,
damages, losses, expenses, and fees (including, without limitation, reasonable attorney, expert, and accountant fees) (“Losses”), including,
without limitation, bodily injury or death, resulting from an individual’s use of the Products, except to the extent caused by the negligence of
H. D. Smith. In no event shall H. D. Smith or its affiliates be liable for any special, indirect, incidental, exemplary, punitive or consequential
damages (including, without limitation, lost profits) even if Purchaser has been advised of such damages.
14. Limitation of Liability. Purchaser’s exclusive remedy for a defective Product sold to Purchaser by H. D. Smith shall be the replacement of or
reimbursement for such defective Product, and H. D. Smith’s liability for any Losses resulting from any defective Product shall be limited to
the purchase price of such Product that caused the Loss.
15. Compliance with Laws. H. D. Smith and Purchaser represent and warrant that each shall comply with the requirements of all applicable laws,
including, but not limited to the Anti-Kickback Statute, 42 U.S.C. 1320a-7b, and the reporting requirements of 42 C.F.R. 1001.952(h) regarding “safe
harbor” protection for discounts (the “Discount Safe Harbor”). Purchaser covenants and agrees that it reports its costs as required by law, and H. D.
Smith agrees to comply with the applicable reporting standards required by law.
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Upon request by the Secretary of DHHS or a State agency, H. D. Smith shall provide information regarding the value of any discount under this
Agreement. H. D. Smith represents that any discount or rebate provided to Purchaser shall satisfy the requirements of this Discount Safe Harbor. In
addition, upon request by the Secretary of DHHS, or a State agency, Purchaser shall provide such information as provided to it by H. D. Smith
regarding the value of the discount under this Agreement. In the event Purchaser receives a request for information not yet furnished to Purchaser by
H. D. Smith, H. D. Smith agrees to furnish such information as soon as reasonably possible in order for Purchaser to respond in a timely manner.
16. Medicare Access to Books and Records. In the event that the requirements of 42 C.F.R. Subpart C of Part 405, 42 C.F.R. subpart D of Part 420, or
42 C.F.R. Subpart B of Part 455, or any amendments thereto, are held applicable to this Agreement, H. D. Smith agrees to make available, upon written
request by the Secretary of DHHS, the Comptroller General of the United States, or any of their duly authorized representatives, this Agreement and
any books, documents and records necessary to verify the cost of services rendered under this Agreement. H. D. Smith further agrees to make said
Agreement, books, documents and records available until the expiration of four (4) years after the services are furnished under this Agreement. In the
event H. D. Smith subcontracts any or all of its duties under this Agreement to another party and said subcontract has a value or cost of $10,000 or
more over a twelve (12) month period, H. D. Smith agrees that the subcontract shall contain a clause requiring the subcontractor to make available
upon written request by DHHS, the Comptroller General of the United States or any of their duly authorized representatives, the subcontract and books,
documents and records of the subcontractor that are necessary to verify the nature of the costs under the Subcontract.
17. Warranty of Non-Exclusion. H. D. Smith represents and warrants to Purchaser that neither it, nor any of its officers, directors, employees or agents
(collectively “it” in this paragraph), (i) is currently excluded, debarred, or otherwise ineligible to participate in any federal programs, including but not
limited to federal healthcare programs as defined in 42 U.S.C. §1320a-7b(f) (the “federal health care programs”); (ii) has been convicted of a criminal
offense related to the provision of health care items or services; (iii) has been excluded, debarred or otherwise declared ineligible to participate in any
federal program; or (iv) is under investigation or otherwise aware of any circumstances that may result in said party being excluded from participation in
any federal program. This shall be an ongoing representation and warranty during the term of this Agreement. H. D. Smith shall notify Purchaser
immediately, but no later than five (5) days, of any change in the status of the representation and warranty set forth in this Section. Any breach of this
Section shall give Purchaser the right to terminate the Agreement immediately for cause.
18. Purchaser Licensed. Purchaser represents, warrants and covenants to H. D. Smith that at all times during the term of this Agreement, Purchaser shall
hold all, and is not and will not be in violation of any, licenses, permits or other government authorizations required by all applicable local, state and federal
laws, rules, regulations and ordinances and has and will have all right, power and authority to purchase, receive and use the Products on behalf of and as
agent for the State for the Programs. This shall be an ongoing representation and warranty during the term of this Agreement. Purchaser shall notify H.
D. Smith immediately, but no later than five (5) days after receipt of notice, of any claim, action or investigation (including, without limitation, disciplinary
action) taken against Purchaser by any local, state or federal governmental authority.
19. Disclosure. Purchaser acknowledges that H. D. Smith is required to comply with certain regulations, laws, policies and requirements. In order to
maintain compliance, H. D. Smith may need certain information from Purchaser from time to time, including, but not limited to Drug Usage Reports and
information regarding the physicians to whom Purchaser provides Product, etc. (“Requested Disclosure”). Purchaser hereby agrees to provide
H. D. Smith with Requested Disclosures required by law that are in Purchaser’s possession within five (5) days of receipt of written request.
20. Termination of Agreement.
a) Termination for Cause. This Agreement may be terminated by a Party if the other Party commits a material breach of this Agreement and if such
breach is not cured within sixty (60) days after written notice of the breach is sent from the non-breaching Party to the breaching Party. H. D. Smith
may terminate this Agreement if Purchaser fails to pay any amount when due and such failure is not cured within five (5) business days after
written notice of such failure is provided from H. D. Smith to Purchaser.
b) Immediate Termination. This Agreement may be terminated immediately by a Party: (i) if the other Party becomes excluded from participation in
Medicare, Medicaid or other federally funded health care program; (ii) in the event of any proceedings, voluntary or involuntary, in bankruptcy or
insolvency by or against the other Party, the inability of the other Party to meet its debts as they become due, or in the event of the appointment of
an assignee for the benefit of creditors, a trustee in bankruptcy, or receiver or similar entity; (iii) if the other Party fails to comply with any law which
may result in the forfeiture of property or other law where non-compliance may have a significant, adverse effect on the ability of the other Party to
perform its obligations pursuant to this Agreement; (iv) if H. D. Smith determines in its sole discretion and in good faith that the sale or delivery of
Product may be contrary to or violate any H. D. Smith policy related to own use or compliance requirements , any law or regulation, any
agreement between H. D. Smith with any governmental authority or pose a regulatory risk to H. D. Smith; or (v) if either Party discontinues the
business it currently operates.
c) Effect of Termination. Upon expiration or earlier termination of this Agreement, neither Party shall have any further obligations hereunder,
except for obligations accruing prior to the date of expiration or earlier termination and except under Sections 8 and 11 through 19 of this
Agreement, each of which shall survive the expiration or earlier termination of this Agreement.
d) No Exclusive Remedy. The exercise by either Party of any right of termination under this Agreement shall not constitute a waiver of any other
rights or remedies available to such Party for violation of the terms of this Agreement or under applicable law or in equity.
21. General Provisions.
a) Entire Agreement. This Agreement represents the entire agreement and understanding between the Parties regarding the subject matter hereof
and supersedes in all respects any and all prior oral or written agreements, understandings, bids, bid responses, and/or proposals between the
parties pertaining to the subject matter of this Agreement. There are no representations, warranties or covenants among the Parties with respect
to the subject matter of this Agreement, except as set forth in this Agreement.
b) Amendments. This Agreement may be amended only by an instrument in writing signed by the Parties hereto.
c) Authority. Purchaser represents, warrants and covenants that Purchaser has the right, power and authority to enter into this Agreement and that
there are no outstanding or conflicting agreements contrary to the intent of this Agreement.
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d)
e)
f)
Counterparts. This Agreement may be executed in one or more counterpart, each of which will be deemed to be an original copy and all of
which, when taken together, will be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of
signatures and signature pages by facsimile transmission or PDF shall constitute effective execution and delivery of this Agreement as to the
parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or PDF shall be
deemed to be original signatures.
Interpretation. The Parties hereto acknowledge and agree that: (i) each Party has reviewed the terms and provisions of this Agreement; (ii) the
rules of construction to the effect that any ambiguities are resolved against the drafting Party shall not be employed in the interpretation of this
Agreement; and (iii) the terms and provisions of this Agreement shall be construed fairly as to all Parties hereto and not in favor of or against any
Party, regardless of which Party was generally responsible for the preparation of this Agreement.
Notice. Any notice or other communication given or made pursuant to this Agreement must be in writing and shall be delivered to the intended
party at the address set forth in this section, by personal delivery, nationally recognized overnight courier or by certified or registered mail, postage
prepaid, and shall be deemed given when personally delivered or two (2) business days after deposit with a courier or five (5) business days after
mailing.
To Purchaser: __________________________ _
__________________________ _
Attn: __________________________________
__________________________________
To H. D. Smith: ___________________________ ___________________________
Attn: ________________________________________________________________________
g)
h)
i)
j)
k)
l)
m)
n)
o)
p)
Force Majeure. Except with respect to the obligation to pay amounts due, neither Party shall be liable for any failure or delay in performance
under this Agreement, to the extent said failures or delays are caused by conditions beyond its reasonable control including, but not limited to Acts
of God, wars or civil commotion, damage or destruction of facilities or materials by fire, earthquake, water, storm or natural disaster, labor disputes
or shortages, product or material shortages, transportation delays or breakdowns or other delivery disruptions or any other event beyond the
reasonable control of the Party whose performance is affected.
Adverse Event. In the event of an event beyond the control of H. D. Smith that has or will likely have a substantial negative impact on
H. D. Smith’s business (“Adverse Event”), H. D. Smith may, at its discretion send Purchaser written notification providing information regarding the
Adverse Event and notifying Purchaser that a pricing change or change to the terms of this Agreement is necessary. Within a reasonable time
after receipt of the written notice, not to exceed ten business days, the parties shall re-negotiate the pricing and/or term(s) of the Agreement in
good faith. If, after a 15 day period the parties cannot agree, H. D. Smith shall have the right to terminate this Agreement upon five business days
prior notice to Purchaser.
Surcharges; Taxes. H. D. Smith reserves the right to add a $5.00$5.00 fuel surcharge to each delivery if the price of gasoline, as reported by the
U. S. Energy Information Administration (www.eia.gov), is reported above $2.50. The surcharge will be evaluated monthly and if the price of
gasoline falls below the set amount, the surcharge will be removed. Purchaser acknowledges responsibility for and will pay, indemnify and
reimburse H. D. Smith for, the gross amount of any present or future sales, use, excise, occupation, privilege, value-added or other similar tax (but
specifically excluding any tax on the net income of H. D. Smith) applicable to the price, sale or furnishing of any Products under this Agreement by
H. D. Smith.
Data Requests. If H. D. Smith receives a court order, subpoena, governmental request, audit request, or custom reports from Purchaser (“Data
Request”), H. D. Smith will comply with such Data Request and Purchaser shall reimburse H. D. Smith for and indemnify and hold H. D. Smith
harmless from and against, any and all costs, (including reasonable attorney’s fees), fees, losses, damages, or other expenses incurred in
connection with responding to such Data Request.
Severability. If any term, covenant or condition contained in this Agreement is deemed to be invalid, illegal or unenforceable, then the rights and
obligations of the parties hereto shall be construed and enforced with that term, covenant or condition limited so as to make it valid, legal and
enforceable to the greatest extent allowed by law, or, if it is totally invalid, illegal or unenforceable, then as if this Agreement did not contain that
particular term, covenant or condition. In such event, the remaining provisions of the Agreement shall be valid and enforceable to the extent
permitted by law.
Third Party Rights. Except as otherwise expressly stated herein, the Parties agree that they do not intend to create any enforceable rights in any
third parties under this Agreement and that there are no third party beneficiaries to this Agreement.
Independent Contractors. H. D. Smith and Purchaser each acknowledge and agree that the relationship between them is one of independent
contractors. This Agreement does not create a partnership, association or other business entity. Neither H. D. Smith nor Purchaser has the right to
bind the other and neither shall be considered the employer or agent of the other.
Waiver; Remedies. The waiver by either Party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to
be, a waiver of any subsequent breach of the same or other provisions hereof. The failure by either Party to enforce any provision of this
Agreement shall not be construed as a waiver of future enforcement of that or any other provision of this Agreement. Each remedy specifically
provided under this Agreement is non-exclusive and shall be taken and construed as cumulative and in addition to any other remedy provided
herein or by law or in equity.
Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Illinois, without
regard to conflict of laws principles thereof.
Assignment. A Party shall not assign its rights or duties under this Agreement (whether by operation of law or otherwise) without prior written
consent of the other Party; provided, however, that H. D. Smith may assign its rights and obligations hereunder to any affiliate by written notice
to Purchaser, including in connection with a merger, reorganization, consolidation or sale of all or substantially all its assets.. This Agreement
shall be binding upon and inure to the benefit of the respective parties and their successors and permitted assigns.
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Account Name: Click here to enter text.
q)
r)
Survival. Termination of this Agreement for any cause or its expiration shall not release either party from any liability that accrued on or before the
date of termination or which may thereafter arise with respect to any act or omission occurring on or before the date of termination, or any duty or
obligation that by its nature should extend beyond the expiration or earlier termination of this Agreement.
Headings. Headings contained in this Agreement have been inserted for reference purposes only and will in no way affect the
interpretation of this Agreement.
IN WITNESS WHEREOF, the duly authorized officers and representatives of H. D. Smith and Purchaser have executed this Agreement as of the Effective
Date.
Kentucky Pharmacists Association, Inc. on behalf of and as agent
for the Commonwealth of KentuckyKentucky Pharmacists
Association, Inc. on behalf of and as agent for the Commonwealth
of Kentucky:
Date:
H. D. Smith Wholesale Drug Co.
By:
By:
Printed Name:
Printed Name:
Date:
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Account Name: Click here to enter text.
Exhibit A
Purchaser Facilities
Purchaser/Facility Name: ____________________________________________________________
Address: ____________________________________________________________________________________
DEA #: ______________________________________________________________________________________
Deliver Days, Times & Cut-Offs: __________________________________________________________________________
Purchaser/Facility Name: ____________________________________________________________
Address: ____________________________________________________________________________________
DEA #: ______________________________________________________________________________________
Deliver Days, Times & Cut-Offs: __________________________________________________________________________
Purchaser/Facility Name: ____________________________________________________________
Address: ____________________________________________________________________________________
DEA #: ______________________________________________________________________________________
Deliver Days, Times & Cut-Offs: __________________________________________________________________________
Purchaser/Facility Name: ____________________________________________________________
Address: ____________________________________________________________________________________
DEA #: ______________________________________________________________________________________
Deliver Days, Times & Cut-Offs: __________________________________________________________________________
Purchaser/Facility Name: ____________________________________________________________
Address: ____________________________________________________________________________________
DEA #: ______________________________________________________________________________________
Deliver Days, Times & Cut-Offs: __________________________________________________________________________
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Account Name: Click here to enter text.
Exhibit B
Product Pricing
To be eligible for the pricing set forth below, Purchaser must: comply with the payment terms selected by Purchaser and the use of EFT or check.
In the event Purchaser fails to maintain compliance with the above, H. D. Smith may, without limiting any other rights or remedies available to H. D.
Smith under this Agreement or under the law or in equity, adjust Purchaser’s cost of goods to such amount as H. D. Smith determines in good faith H. D.
Smith would have agreed to charge Purchaser based on the actual volume of purchases and payment timing and form for such period and/or terminate
this Agreement. Purchaser will be provided thirty days written notice prior to any adjustment and any adjustment applied to cost of goods will be reevaluated every ninety days until Purchaser regains compliance. For example, compliance for January through March will be evaluated in April. If
compliance levels qualify Purchaser for a new cost of goods (positively or negatively) the new cost of goods change will be effective on May 1st and run
through July 31st. The next quarter, April through June will be evaluated in July and any cost of goods changes will be effective August 1st, and so on.
Cost of Goods: Subject to the Pricing Section of this Agreement, Purchaser shall be entitled to purchase Products, that are not Specially Priced
Products, in an amount equal to WAC minus or plus the appropriate cost of goods (“COG”) percentage set forth in the table below. The COG
percentage will be taken off or added to the invoice price.
Volume/Payment Term Tier
Rx Brand
CII Brand
Generic Rx
OTC/HBC
Drop Ship
Payment Term:
Extended PayExtended Pay
Minimum Monthly Volume:
COGS: 0%
COGS: 0%
COGS: 0%
COGS: 0%
COGS: 0%
$N/A
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