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PRIME VENDOR AGREEMENT | Document Parties: NATIONAL MEDICAL HEALTH CARD SYSTEMS INC | AmerisourceBergen Drug Corporation You are currently viewing:
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NATIONAL MEDICAL HEALTH CARD SYSTEMS INC | AmerisourceBergen Drug Corporation

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Title: PRIME VENDOR AGREEMENT
Date: 9/13/2006
Industry: Healthcare Facilities    

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Exhibit 10.7

CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934. THE OMITTED MATERIALS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.

PRIME VENDOR AGREEMENT

This Prime Vendor Agreement (“Agreement”) is made as of May 1, 2006 (“Effective Date”) by AmerisourceBergen Drug Corporation, a Delaware corporation (“ABDC”), and NMHCRx Mail Order, Inc., dba NMHC Mail, a Delaware corporation (“Customer”).

A. ABDC is a national distributor of pharmaceutical and other products, including prescription (“Rx”) and over-the-counter (“OTC”) Pharmaceuticals, nutritional, health and beauty care (“HBC”) and home health care (“DME”) products (“Product” or “Products”), and services (“Services”);

B. Customer owns and operates one or more alternate care pharmacies (“Facilities”); and

C. The parties intend by this Agreement to set forth their obligations to each other for an arrangement under which ABDC will provide Products and Services to Customer (“Program”).

NOW THEREFORE, the parties agree as follows:

 

1.

PRICING AND PAYMENT TERMS

ABDC will be the Primary Vendor of all requirements of Customer’s Facilities for Products. Customer will pay, within terms, Product costs and Program fees pursuant to payment terms in Exhibit “1” (“Pricing/Payment Terms”). “Primary Vendor” means Customer purchases from ABDC no less than 90% of all prescription pharmaceutical Products it purchases, as verified quarterly, and meets minimum periodic purchase levels in Paragraph 3(A) of the Pricing/Payment Terms. Orders for Products will be electronically transmitted (including Schedule II controlled substances when allowed) and will describe Products that ABDC will provide to Customer, the quantity and designated delivery location. All payment plans (except pre-pay) must be by electronic funds transfer (EFT).

 

2.

PRO GENERICS PROGRAM PARTICIPATION

Customer must elect to participate in ABDC’s preferred generic formulary program (“Preferred Rx Options” or “PRxO Generics”) pursuant to requirements as amended from time to time by ABDC. Customer will purchase no less than 3% of its total purchases from ABDC’s PRxO Generics program. Customer authorizes ABDC as its sole agent to develop and implement a generic pharmaceutical Product list for the Term. Customer will purchase from ABDC each calendar quarter no less than the minimum Net Purchase volume of generic pharmaceutical Products as set forth in the Pricing/Payment Terms.

 

3.

CUSTOMER LOCATIONS & DELIVERIES

ABDC will deliver Products to each Facility five days a week (Monday-Friday), once a day except holidays and warehouse physical inventory days. Additionally, Customer will be entitled to three emergency deliveries per calendar quarter per pharmacy location at no additional charge. Customer may be charged for each additional emergency order. Facility means each of Customer’s alternate care pharmacies, together with any other facilities Customer acquires, is affiliated with or operates during the Term in the United States. Newly acquired facilities with existing agreements with other distributors will become Facilities under this Agreement upon the earlier of expiration of such existing agreement or the date Customer may terminate such agreement, with or without cause, without breaching it or paying a material termination penalty; provided, however, service to Facilities outside ABDC’s normal service area (which does not include Alaska, Hawaii or U.S. territories) may be subject to a delivery surcharge.

 

1


4.

RETURNED GOODS POLICY

Customer will only return Products to ABDC in accordance with ABDC’s standard policy for returned Products (“Returned Goods Policy”), as amended from time to time by ABDC. If Customer returns more than 3% of its OTC Net Purchases, or 3% of its pharmaceutical Net Purchases in any quarter, Customer may be assessed an additional restocking fee over any standard stocking fee in the Returned Goods Policy or ABDC may adjust the Price of Goods or both. Customer will return only Product purchased from ABDC for which Customer has submitted the invoice number and date of purchase. ABDC may reject returns not accompanied by the invoice number and date of purchase or that exceed in amount either the 3% return limit or the amount on the referenced invoice number. ABDC reserves the right to refuse all future returns from Customer in the event that Customer submits any counterfeit Product for return.

 

5.

ADDITIONAL SERVICES & PROVISIONS.

Services are listed in Exhibit “2” . Terms, conditions and other provisions are set forth in Exhibit “3” (“Provisions”). ABDC may, from time to time, develop policies and procedures relative to new or existing Services offered to customers, on an interim or as-needed basis. If ABDC develops such policies or procedures or changes current ones, ABDC will notify Customer in writing at least thirty (30) days before such changes are effective. If Customer is materially adversely affected by such policy or procedure, Customer may terminate this Agreement upon thirty (30) days written notice to ABDC.

 

6.

TERM OF AGREEMENT

Subject to Paragraph 5 of the Provisions, the Term will be from the Effective Date until April 30, 2010 . The Term will, thereafter, be extended on a month-to-month basis until either party gives at least ninety (90) days prior written notice to the other of its intention not to extend this Agreement.

 

7.

RECORDS

To the extent required by 42 U.S.C. §1395x(v)(1), until four (4) years after termination of this Agreement, ABDC will make available upon written request to the Secretary of the U.S. Department of Health & Human Services (“HHS”), the Comptroller General, or their authorized representatives, a copy of this Agreement and all records required to certify the nature and extent of costs of Products and Services provided by ABDC under this Agreement. ABDC will ensure, to the extent it carries out its duties through a subcontract with a value or cost of $10,000 or more in a twelve (12) month period with a related organization, such subcontract will contain similar provisions. Notwithstanding the foregoing, ABDC will have no obligation to make public documents subject to attorney-client privilege.

 

8.

NOTICES

Notices must be in writing and sent certified mail, prepaid, return receipt requested, or sent by facsimile to the address or facsimile number below. Parties may change this information by written notice to the other party. Pursuant to the Telephone Consumer Protection Act of 1991, 47 U.S.C. §227, Customer consents to receiving notices, including product updates, recalls, new product launches and programs, advertisements and other marketing materials by telephone facsimile (“fax”) machine from ABDC, its affiliates and their related companies, to the fax number set forth below.

 

2


 

 

 

 

 

To Customer:

  

NMHCRx Mail Order, Inc., dba NMHC Mail

9994 Premiere Parkway

Miramar, FL 33025

 

  

Attn:

  

President

 

  

Fax:

  

954-443-9654

 

 

To ABDC:

  

AmerisourceBergen Drug Corporation

1300 Morris Drive

Chesterbrook, PA 19087-5594

 

  

Attn:

  

Vice President, Health Systems

 

  

Fax:

  

610-727-3601

 

 

with a copy to:

  

AmerisourceBergen Corporation

1300 Morris Drive

Chesterbrook, Pennsylvania 19087-5594

 

  

Attn:

  

General Counsel

 

  

Fax:

  

(610) 727-3612

 

9.

EXHIBITS

The following exhibits to this Agreement are incorporated by this reference.

 

 

1

Pricing/Payment Terms

 

 

2

Value-Added Services

 

 

3

Provisions

IN WITNESS WHEREOF, the parties have had a duly authorized officer, partner or principal execute this Prime Vendor Agreement as of the Effective Date.

 

 

 

 

 

 

 

 

 

 

CUSTOMER:

 

 

 

ABDC:

NMHCRx Mail Order, Inc., dba NMHC Mail

 

 

 

AmerisourceBergen Drug Corporation

 

 

 

 

 

By:

    

/s/ Jay Flanick

 

 

 

By:

 

/s/ Carleton E. Jones

Name:

    

Jay Flanick

 

 

 

Name:

 

Carleton E. Jones

Title:

    

Chief Mail Officer

 

 

 

Title:

 

Vice President, Alternate Care Sales

 

3


CONFIDENTIAL TREATMENT REQUESTED

EXHIBIT 1 TO

PRIME VENDOR AGREEMENT

PRICING / PAYMENT TERMS

In addition to payment for Products, Customer will pay ABDC the following Program and other fees for ABDC’s Product distribution and Services for Customer and its Facilities. Except as otherwise provided, payments are due within ten (10) days from ABDC’s invoice date. Pricing does not reflect any administrative or other fee to a group purchasing organization or buying group (“GPO”). If Customer contracts with a GPO, Customer will pay any such fees to the applicable GPO. In any event, ABDC will not pay a GPO fee unless and until a group designation form signed by Customer is filed with ABDC. Customer will pay any increase in GPO administrative fees during the Term of this Agreement.

 

1.

PROGRAM FEES

A. Price of Goods . Customer will pay the following Price of Goods based upon the definition of “Cost” below, subject to the following adjustments for payment terms, for Products other than Products and Services designated as ABDC Special Price Products. ABDC will add to the billed amount any applicable sales, use, business and occupation, gross receipts or other tax.

 

 

 

 

 

 

Pricing

 

Price of Goods*

Branded Rx Pharmaceutical Products—Average Total Monthly Volume

 

Weekly

[*]

 

[*]

 

[*]

[*]

 

[*]

 

[*]

 

*

“Cost” with respect to any Product means the lower of (i) the price of the Product on a supplier’s price list on the date the Product is allocated to Customer or (ii) any applicable Customer/GPO contract price for the Product authorized by a supplier and maintained in an ABDC bid file, in each case exclusive of discounts for prompt payment given to ABDC by its manufacturers. Cost outside the continental U.S. may be higher than manufacturer’s/supplier’s normal price list.

Selected Products (“ABDC Special Price Products”) including but not limited to drop shipments, food, gift items, HBC/OTC items, home healthcare (DME), items deemed operationally difficult to manage (refrigerated, schedules, etc.), items purchased from suppliers not offering cash discounts of 2% or better, deliveries FOB destination or other standard terms, generics, nutritional, private label, school and office items, slow-moving items, supplies (bottles & vials)) and Services will not be billed based upon ABDC’s Cost (as defined above), but will instead be billed in accordance with the terms and conditions established by ABDC from time to time for such Products and Services. “Slow-moving items” are defined as items of which 10 or less are sold through a single distribution center per month. Insulin, refrigerated items and Schedule II through V narcotics shall not be ABDC Special Price Products. Purchases of ABDC Special Price Products count toward total Monthly Net Purchase volume.

B. PRxO Generics Rebates. If Customer continues to use ABDC as its Primary Vendor and otherwise complies with ABDC’s PRxO Generics requirements, ABDC will issue a credit to Customer equal to [*]% of Customer’s Net Purchases of PRxO Generics during the preceding calendar quarter if Customer’s PRxO Generics purchases are [*]% or more of Customer’s total Rx Net Purchase volume.

Calculations are quarterly, with no carryover from one quarter to the next. Customer’s PRxO Generics purchases will be invoiced at ABDC’s standard ABDC Special Price. Pending rebates will be noted in Customer’s invoices and statements. Customer hereby indemnifies ABDC pursuant to Provisions Paragraph 6 for any inappropriate use of such invoices. ABDC will issue any credit to Customer within forty-five (45) days of the end of each calendar quarter. If Net Purchases of PRxO Generics are less than [*]% of total Rx Net Purchases, no rebate credit will be given and ABDC may reasonably adjust Price of Goods to reflect the lower than expected purchase volume. Customer must be compliant with payment terms to be eligible for any rebate under this paragraph.


[*]

Confidential Portion Omitted and filed Separately with the Commission

 

4


CONFIDENTIAL TREATMENT REQUESTED

 

C. Compliance Rebate . At the end of each contract year, if Customer complies with all terms of this Agreement during the contract year, Customer shall receive a discount in the form of a rebate equal to [*]% off the first $[*] of Net Purchases purchased in the last month of the contract year, payable in the form of a credit memo no later than 45 days after April 30 of each year of the Agreement, commencing April 30, 2007. “Net Purchases” shall mean purchases less returns. Customer must be compliant with all terms of this Agreement to be eligible for any rebate under this paragraph.

D. Additional Value-Added Services . The additional value-added Services in Exhibit “2” will be provided to Customer by ABDC for $0.00 per month per Facility for Facilities that meet minimum Net Purchase levels.

E. Ordering Hardware/Software . In addition to the foregoing value-added Services fee, Customer will pay the per-month fees in Exhibit “2” for ordering and reporting software and hardware selected by Customer for each installation on system hardware at Customer’s Facilities and other locations.

F. Contract Administration . In administering Customer’s GPO/supplier contracts, Customer must (i) provide a copy of new contracts, (ii) comply with supplier’s terms, (iii) use all products for its “own use” (as defined in judicial and legislative interpretations), (iv) notify ABDC at least forty-five (45) days before it changes suppliers, and (v) upon changing suppliers, assist ABDC in disposing of any excess inventory acquired for Customer. Additionally, Customer will notify ABDC before discontinuing purchases of any special inventory that it has requested that ABDC stock (whether or not pursuant to a contract) and assist ABDC in disposing of any excess of such inventory. When invoiced, Customer will promptly reimburse ABDC for any unpaid chargebacks that are (x) denied by a GPO or manufacturer/supplier or (y) not paid within forty-five (45) days and, in either case, Customer will look solely to such GPO or manufacturer/supplier for redress.

G. Security Deposit . Within five (5) days of execution of this Agreement, Customer will deposit with ABDC the sum of $0.00 as a deposit for Customer’s performance of its obligations under this Agreement. Upon request, ABDC will return such deposit within thirty (30) days if Customer has fully performed its obligations under this Agreement, including having no late payments, for a period of 0 months prior to such request. Upon the expiration or termination of this Agreement, ABDC may deduct from such deposit any unpaid amount, including payment for Products and Services. ABDC will return to Customer any balance remaining within thirty (30) days of the expiration or termination of this Agreement.

 

2.

PAYMENT TERMS

A. Options . Customer agrees to the following payment terms for Product purchases. ( Check only one box below ):

Monthly Prepay

¨ Prior to commencement of deliveries, Customer will make a prepayment deposit for an estimated one month’s purchases to ABDC. Thereafter, payment for invoices dated the 1st through the last day of each calendar month must be received by the 10th of the following calendar month.

Semi-Monthly Prepay

¨ Prior to commencement of deliveries, Customer will make a prepayment deposit for an estimated one-half of one month’s average purchas


 
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