Reseller product supply agreement

These terms and conditions, as amended from time to time, (the “Agreement“) shall apply to all Products (as defined below) purchased by the purchaser identified on the applicable order form (the “Buyer“) from McKesson Medical-Surgical Inc. (“Seller“) located at 9954 Mayland Drive, Suite 4000, Richmond, Virginia 23233.

Seller and Buyer agree that the terms and conditions hereinafter set forth shall govern the relationship between Seller and Buyer to the extent that the parties do not have a written agreement in effect that conflicts with such terms and conditions. Buyer acknowledges and accepts all such terms and conditions by placing an order for goods with Seller, and upon Seller’s delivery of the order to Buyer or to Buyer’s Customer.

WHEREAS, Seller is engaged in the business of wholesale distribution of medical-surgical products and equipment and the provision of related goods and services. Buyer desires to utilize Seller’s distribution and other services upon the terms and conditions set forth in this Agreement.

WHEREAS, Buyer is a reseller engaged in the business of selling medical supplies, durable medical equipment, and/or other support services.

NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the parties agree as follows:

1. APPOINTMENT.

1.1. Appointment. Seller hereby appoints Buyer as a reseller for the purchase of “Products” normally purchased through medical supply distributors to “Accounts.” “Products” means any and all of the items of medical supply products and equipment, nutritionals and general merchandise otherwise made available for sale by Seller. “Accounts” means those classes of purchasers located in the Territory and may not include government entities, resellers, or any purchasers via ecommerce channels. “Territory” means the 48 contiguous states of the United States and the District of Columbia. Buyer intends to provide medical supply products to primary care customers (“Buyer’s Customers“) within the Territory. Buyer acknowledges that Seller may be contractually prohibited by a manufacturer to provide certain Products in its catalogue to Buyer. Buyer also acknowledges that this Agreement is not an exclusive arrangement and does not limit the ability of Buyer to purchase the Products from other parties, nor does it limit the ability of Seller to sell the Products to other distributors or customers.

1.2. Government Contracts. Buyer is expressly prohibited from either directly or indirectly marketing or reselling Products to (i) the United States federal government; or (ii) any United States state and local government agencies, public education institutions, and state and local government healthcare entities; or (iii) any entities that the Buyer knows or reasonably should know will market or resell to United States federal, state, or local government agencies. Seller will not be bound by the terms and conditions of any government contracts to which Buyer may be a party. Seller in its sole discretion may terminate this Agreement immediately in the event Buyer breaches this Section 1.2.

1.3. E-Commerce Channels. Buyer represents and warrants that it shall not resell, export, re-export, transfer, distribute, or otherwise provide any Products on or through any e-commerce platforms which are owned or operated by Buyer or through any third-party e-commerce platforms including, but not limited to, any third-party marketplace websites (e.g., Amazon, eBay, Alibaba, etc.), drop-ship accounts (e.g., Buy.com, Newegg.com, Overstock.com, Groupon.com, etc.), classified sites (e.g., Craigslist.com, Facebook Marketplace, etc.), or direct messages on social media or online forums. A breach of this Section will be deemed a material breach of this Agreement.

2. TERM AND TERMINATION.

2.1. Term. This Agreement shall be for an initial term of one (1) year, commencing on the Effective Date (“Initial Term“), unless sooner terminated as set forth in this Agreement. Following the Initial Term, this Agreement will automatically renew for successive one (1) year terms (each a “Renewal Term“) (collectively, the Initial Term and any subsequent Renewal Term(s) shall be the “Term“).

2.2. Termination Upon Default. This Agreement may be terminated by either party upon five (5) calendar days’ written notice to the other if the other party materially breaches this Agreement and such breach is not cured within thirty (30) calendar days of the date of written notice of such breach. Certain events of default by Buyer, as set forth herein, may not have a cure period. In such cases, the Agreement shall be terminated immediately upon Seller’s written notice to Buyer.

2.3. Termination Upon Specific Events. A party hereto may terminate this Agreement upon ten (10) calendar days’ written notice to the other party if the other party: (a) files for bankruptcy, makes an assignment for the benefit of creditors, has its financial condition deteriorate such that its ability to perform under this Agreement is jeopardized, or has an involuntary petition in bankruptcy or petition for an arrangement pursuant to any bankruptcy laws filed against it which is not dismissed within thirty (30) days, or has a receiver appointed for its business; or (b) is excluded or becomes ineligible from participation in a “federal healthcare program” as defined in 42 U.S.C. § 1320a-7b(f) or in any other government payment program or is convicted of a criminal offense related to health care.

2.4. Termination Upon Violation of Law. Seller in its sole discretion may terminate this Agreement on five (5) calendar days’ written notice to Buyer following any violation or alleged violation by Buyer of any applicable law or regulation.

2.5. Termination for Convenience. Seller in its sole discretion may terminate this Agreement for any reason on thirty (30) calendar days’ written notice of termination to Buyer.

2.6. Consequences of Termination. Upon expiration or termination of this Agreement, Buyer will cease to be an authorized distributor of Seller. Buyer is required to immediately cease all marketing, advertising, and other resale or distribution activities with respect to Seller’s Products. Buyer must immediately pay Seller any outstanding unpaid amounts and the amounts, if any, which come due under any purchase order accepted prior to the termination or expiration date of this Agreement as such amounts come due.

3. PRICING.

3.1. Product Pricing. Seller will provide product pricing to Buyer. The prices quoted are subject to adjustment by Seller due to any event beyond the control of Seller. Buyer is to determine and set its resale pricing.

3.2. External Event. Pricing for Products may be adjusted by Seller at its sole discretion: (i) to reflect actual or reasonably anticipated manufacturer price change(s); (ii) due to an External Event; or (iii) if Buyer becomes a Non-Compliant Customer (as defined herein). “External Event” means an event or series of events external to and beyond the control of Seller that has or is likely to have a significant adverse impact on Seller’s business or operations, including but not limited to material market fluctuations, actual or prospective changes in laws or regulations, actual or proposed enactment or promulgation of regulations or administrative actions, a fundamental change in supplier’s pricing or distribution policies, or changes in the demand for or availability of a particular Product. Buyer will be considered a “Non-Compliant Customer” if: (i) Buyer does not meet any purchase requirement, or (ii) Buyer fails to perform any other obligation or commitment set forth in this Agreement, including, but not limited to, applicable credit terms.

3.3. Pricing. Seller makes no representation as to the competitiveness of any pricing offered to Buyer under this Agreement and does not guarantee that pricing hereunder is as low or lower than pricing offered to other customers of Seller. Any prices quoted hereunder are subject to adjustment by Seller at any time. Any pricing provided is contingent on standard commercial shipping, labeling and marking requirements within the Territory.

4. ORDERING AND DELIVERY.

4.1. Electronic Ordering. Seller shall provide access to McKesson SupplyManager℠ (“SupplyManager“) to Buyer, at no charge and subject to the terms of the SupplyManager Terms of Use Agreement. Buyer may use another mutually acceptable electronic ordering system, as agreed to by the parties. When use of an electronic ordering system is not possible, Buyer may call its order to Seller’s local customer service center.

4.2. Order Transmission Times. Orders for stocked items transmitted to Seller by the local distribution center’s order transmission deadline will be shipped on the same business day or on the location’s scheduled ship day.

4.3. Acceptance. ALL ORDERS ARE SUBJECT TO ACCEPTANCE BY SELLER; NOTHING HEREIN SHALL BE CONSTRUED AS AN OBLIGATION ON SELLER TO FILL ANY ORDER SUBMITTED BY BUYER.

4.4. Deliveries. Seller will deliver Products Monday through Friday (excluding weekends and Seller holidays) in accordance with a delivery schedule to be determined by the parties. However, any delivery requirements in the original quote request are subject to Product availability. Seller is not liable to Buyer or Buyer’s Customers for any deliveries not made in accordance with a delivery schedule.

4.5. Freight Charges. Shipping and handling charges, if any, for standard deliveries will be mutually agreed upon by separate agreement or by disclosure on the invoice. Shipping and handling charges may be added to the shipping invoice for deliveries outside the contiguous forty-eight (48) states, additional deliveries, emergency orders, rush orders, orders for Products not regularly stocked by Seller’s local servicing distribution center, cold chain orders, hazmat orders, bulk freight, and Products drop shipped from the supplier. For orders less than Seller’s minimum order requirement, Seller may add to the invoice a handling charge determined by Seller and disclosed to Buyer prior to or at the time of order. A fuel surcharge, if applicable, may be added to the invoice. Detailed information on the fuel surcharge can be obtained by request. Seller has the right to ship Products at all times via its own vehicle or a carrier selected by Seller. For delivery directly to an end-user patient/consumer’s place of residence made at the direction of Buyer (“Patient Home Delivery”), in addition to patient home delivery shipping and handling fees, Seller may charge Buyer additional surcharges, including, but not limited to, signature fees, address or billing information correction fees, delivery area surcharges, and other accessorial fees.

4.6. Shipment, Risk of Loss and Title. Seller will generally ship the Products to Buyer and Buyer will distribute the Products to Buyer’s Customers. However, Seller may ship the Products from its distribution center to the applicable Buyer’s Customer if requested by Buyer. For Bulk Delivery and General Sale Purposes: For delivery without any patient/consumer designation or segregation (“Bulk Delivery”), title and risk of loss for the Products will pass to Buyer at the time the Products reach their designated destination, except that drop shipments directly from a supplier will be shipped in accordance with the supplier’s shipping policies. For Patient Home Delivery: Ownership of the Products will transfer to Buyer’s Customer at the time Buyer places the Product order with Seller but risk of loss will remain with Seller until the Products reach their designated destination. Acceptance by Buyer’s Customer will be determined pursuant to agreement between Buyer and Buyer’s Customer.

4.7. Return Goods Policy. All sales of Products under this Agreement are final. Buyer shall not have the right to return any Products to Seller and Seller shall not be responsible for processing or accepting any returned Products from Buyer or from any third-party.

5. CREDIT AND PAYMENT TERMS.

5.1. All payments for Products and/or services must be received by Seller Net within thirty (30) days from the date of invoice (“Due Date“), unless otherwise agreed to by the parties.

5.2. Seller’s standard credit and payment terms are included in the Terms of Sale. This Agreement and pricing are conditioned upon Buyer maintaining a sound financial condition throughout the term hereof and to that end, Buyer agrees to promptly substantiate in writing, at Seller’s request, the existence of such condition with audited financial statements and any other supporting information required by Seller.

6. CONFIDENTIAL INFORMATION. The parties and their employees or representatives (collectively, the “Receiving Party”) agree that the existence of this Agreement and all proprietary and confidential information (“Confidential Information”) disclosed by the other (“Disclosing Party”) will be maintained in confidence and not disclosed to any third party except as may be required by law, or with the Disclosing Party’s express written consent. Pricing and terms of this Agreement are Confidential Information of Seller. Confidential Information does not include information that (i) is now in the public domain or subsequently enters the public domain through no fault of the Receiving Party; (ii) the Receiving Party can establish is presently known or becomes known to the Receiving Party from its own independent sources; (iii) is received from any third party not under any obligation to keep such information confidential; or (iv) the Receiving Party can establish was not Confidential Information disclosed by the other party under this Agreement. Violation of this provision may give rise to equitable and legal liability including, but not limited to, injunctive relief.

7. MISCELLANEOUS.

7.1. Successors and Assigns. This Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by the respective successors of the parties. Neither party shall assign any of its rights or obligations hereunder without the prior written consent of the other party and any attempt to do so without such written consent will be null and of no effect.

7.2. Severability. If all or part of a provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the remainder of that provision and all other provisions of this Agreement will not be affected.

7.3. Amendment. The Agreement may be amended at Seller’s discretion and will be provided, along with written notice, to Buyer.

7.4. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Buyer may not otherwise assign all or any part of this Agreement without Seller’s prior written consent and any attempt to do so without such consent will be null and of no effect. Seller may subcontract any of its obligations under this Agreement, and may perform those obligations through personnel employed, or under contract with Seller.

7.5. Authorization. Each party hereby represents and warrants to the other, that: (i) it has full power and authority required to enter into, execute and deliver this Agreement and to carry out its respective obligations hereunder and to perform the transactions contemplated hereby; and (ii) this Agreement has been duly executed and delivered by, and is the valid and binding obligation of and is enforceable against it in accordance with its terms.

7.6. Construction of Agreement. This Agreement has been negotiated by the parties and its provisions will not be presumptively construed for or against either party. The headings and section titles in this Agreement are used for convenience only, and will not affect the construction or interpretation of this Agreement.

7.7. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same instrument. An executed counterpart delivered via email in a PDF or TIF file format or via facsimile shall have the same force and effect as an executed original.

7.8. Waiver. Any failure of a party to exercise or enforce any of its rights under this Agreement will not act as a waiver of such rights.

7.9. ENTIRE AGREEMENT. This Agreement, Seller’s Terms of Sale referenced on its invoice (also located at https://mms.mckesson.com/content/terms-of-sale-primary-care/), Buyer’s responsibilities as a reseller as set forth on Exhibit A (General Terms and Conditions of Resale), and any other exhibits and/or attachments to this Agreement, in that order of control, embody the entire agreement between the parties with regard to the subject matter hereof and supersede all prior agreements, purchase orders, understandings, and representations with the exception of any promissory note, security agreement or other credit or financial related document(s) between Buyer and Seller that are executed by Buyer and approved by Seller. This Agreement supersedes any and all prior Seller agreements and discount plans in which Buyer may currently be participating. Unless specifically agreed to by Seller, the terms of Buyer’s purchase order, including pre-printed terms and any terms that are inconsistent with or otherwise conflict with this Agreement, have no legal effect and do not modify or supplement the Agreement, even if Seller does not expressly object to those terms when accepting the purchase order.

7.10. Each party agrees that the electronic signature of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. “Electronic Signature” means any electronic marking affixed to this Agreement with the intent to sign such record, including facsimile or e-mail electronic signatures.

Exhibit A | General Terms and Conditions of Resale

During the term of this Agreement, Buyer acknowledges that the following additional terms and conditions shall apply, all of which are material to this Agreement, in addition to any other responsibilities and obligations of Buyer set forth elsewhere in this Agreement or required by Federal, state or local statutes, regulation or other legal obligation:

1. Buyer will provide 100% of all administrative business services required by Buyer’s Customers, including, but not limited to, receiving all customer service calls from Buyer’s Customers and providing all invoicing to Buyer’s Customers;

2. Buyer will conduct business in a manner which at all times reflects favorably on Seller and the Products and not engage in any unfair or deceptive practices or publish any misleading or deceptive material;

3. Buyer will pay all of Buyer’s own expenses, costs and other charges resulting from the performance of its obligations under this Agreement, including, but not limited to, its expenses and costs of sales calls, visits to Buyer’s Customer sites and demonstration, except as may be specifically provided herein to the contrary; and

4. BUYER SHALL STRICTLY COMPLY, AND ENSURE THAT ALL ITS EMPLOYEES, REPRESENTATIVES AND AGENTS COMPLY, WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS GOVERNING THE PERFORMANCE OF BUYER’S OBLIGATIONS HEREUNDER, INCLUDING, BUT NOT LIMITED TO, BEING LICENSED TO CONDUCT SUCH BUSINESS, AND WITH ALL SELLER POLICIES SET FORTH IN THIS AGREEMENT.

5. Seller acknowledges that Products are not being purchased by Buyer for Buyer’s own use, as that term is defined in judicial or legislative interpretation.

6. In no event will a resold, redistributed, or re-imported Product be eligible to be returned to Seller.

7. To the extent that Buyer resells or distributes any Products, Buyer represents and warrants that it and any party to which Buyer may resell or distribute the Products has all required permits, licenses and insurance to manufacture, supply, sell, and deliver the Products.

8. BUYER ACKNOWLEDGES AND AGREES THAT THE PRODUCTS WERE MANUFACTURED TO BE COMPLIANT WITH APPLICABLE U.S. LAWS AND REGULATIONS, INCLUDING THE FOOD AND DRUG ADMINISTRATION REGULATIONS AND STANDARDS. SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND THAT SUCH PRODUCTS ARE COMPLIANT WITH APPLICABLE FOREIGN LAWS AND REGULATIONS GOVERNING THE DISTRIBUTION, EXPORT, IMPORT, RE-EXPORT, STORAGE, HANDLING, TRANSPORTATION, CONSUMPTION, OR USE OF PRODUCTS.

9. Buyer shall release, indemnify, defend, and hold Seller and supplier and their affiliates, officers, directors, employees and agents (a “Seller Indemnified Party“) harmless from and against all claims and all losses, damages, or fines (including any attorneys’ fees or costs, or court cost) incurred by a Seller Indemnified Party, arising from: (i) Buyer’s negligence or willful misconduct; (ii) injury or death of persons or damage to property; (iii) the distribution, export, import, re-export, storage, handling, transportation, consumption or use of the Products; and (iv) Buyer’s failure to comply with the terms of this Agreement.

10. During the term of this Agreement and for a period of two (2) years after termination or expiration of this Agreement, Seller may audit Buyer’s policies, procedures and records that relate to its performance of the terms under this Agreement to ensure compliance with this Agreement upon at least 10 business days’ notice. Notwithstanding the foregoing, the parties agree that Seller may conduct an audit at any time, in the event of (i) audits required by governmental or regulatory authorities, (ii) investigations of claims of misappropriation, fraud, or business irregularities of a potentially criminal nature, or (iii) Seller reasonably believes that an audit is necessary to address a material operational problem or issue that poses a threat to Seller’s business.

11. Buyer acknowledges that Seller is the exclusive owner of it trademarks, logos, trade dress, designs, and copyrights. Buyer cannot claim any ownership of Seller intellectual property and cannot distribute Seller intellectual property to other parties.

12. Buyer represents and warrants that (a) Buyer and each person or entity owning an interest in Buyer is (i) not currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury (“OFAC“) and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation (collectively, the “List“), and (ii) not a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States; (b) none of the funds or other assets of Buyer constitute property of, or are beneficially owned, directly or indirectly, by any “Embargoed Person” (as hereinafter defined); (c) no Embargoed Person has any interest of any nature whatsoever in Buyer (whether directly or indirectly); and (d) none of the funds of Buyer have been derived from any unlawful activity with the result that the investment in Buyer is prohibited by applicable law or that this Agreement is in violation of Law. The term “Embargoed Person” means any person, entity or government subject to trade restrictions under U.S. law, including, but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder with the result that the Buyer is prohibited by law or Buyer is in violation of Law. Buyer covenants and agrees (A) to comply with all applicable laws relating to anti-bribery and anti-corruption, including the U.S. Foreign Corrupt Practices Act; money laundering; anti-terrorism; trade embargos and economic sanctions; and (B) to immediately notify the other in writing if any of the representations, warranties or covenants set forth in this section are no longer true or have been breached or if Buyer has a reasonable basis to believe that they may no longer be true or have been breached. Buyer covenants not to use funds from any “Prohibited Person” (as such term is defined in the September 24, 2001 Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) to make any payment due to the Seller under this Agreement. Buyer acknowledges that Buyer’s inclusion on the List during the Term, or any renewal thereof, as the case may be, of the Agreement shall be grounds for immediate termination, thereby entitling Seller to the exercise of any and all rights and remedies provided for under this Agreement, under applicable law and in equity.

13. BUYER REPRESENTS AND WARRANTS THAT ALL PRODUCTS SOLD PURSUANT TO THIS AGREEMENT SHALL BE SOLD AND USED IN THE UNITED STATES OF AMERICA. In no event shall Buyer, either on its own behalf or through any third- party, export, re-export, transfer, distribute, or provide Products to any person or entity outside of the United States of America. In the event Buyer exports, re-exports, transfers, distributes, or provides such Products outside of the United States of America, either on its own behalf or through any third-party, Seller may immediately terminate this Agreement, thereby entitling Seller to the exercise of any and all rights and remedies provided for under this Agreement, under applicable law and in equity. Further, in the event that Buyer exports, re-exports, transfers, distributes, or provides Products, either on its own behalf of through any third-party, in violation of the terms of this Agreement, Buyer will be solely responsible for complying with all applicable federal, state, local and foreign laws and regulations governing the distribution, export, import, re-export, storage, handling, transportation, consumption or use of those Products. Unless authorized by the U.S. government, Buyer shall not export, re-export, transfer, distribute or otherwise provide Products, directly or indirectly, to or for the benefit of any countries subject to U.S. sanctions or trade restrictions, governments or nationals of any U.S.-sanctioned countries, or to any entities or persons that appear on any U.S. government restricted-party list, including the List. Buyer shall not provide Products to any parties that it knows or has reason to believe would provide Products to any country, government, or person in violation of applicable law. Buyer acknowledges that Buyer’s export, re-export, transfer, distribution, or provision of Products to any person or entity on the List or to any Embargoed Person during the Term, or any renewal thereof, as the case may be, of the Agreement shall be grounds for immediate termination, thereby entitling Seller to the exercise of any and all rights and remedies provided for under this Agreement, under applicable law and in equity.

14. Tracking of Products; Recall Procedure. Buyer will cooperate with Seller and comply with all applicable laws with respect to the tracking of a recall, market withdrawal, removal or other corrective action of any Products that may be purchased and/or distributed by Buyer and/or Buyer’s Customer hereunder.

15. Suspension, Debarment, and Excluded Provider. Neither Buyer nor any of its affiliates, employees or contractors: (a) have been convicted of a criminal offense related to healthcare; (b) are listed on the Office of Inspector General’s List of Excluded Individuals/Entities, or are otherwise currently excluded, suspended or debarred from participating in any federal healthcare program; (c) are under investigation (civil or criminal) by any federal or state enforcement, regulatory, administrative or licensing agency; or (d) are currently listed on the General Services Administration List of Parties Excluded from the Federal Procurement and Non-Procurement Programs. Buyer has an ongoing obligation during the Term, to provide immediate written notice to the Seller upon any change in status regarding this representation.