EXHIBIT 99.1
SUPPLY AGREEMENT
This Supply Agreement ("Agreement") is made as of the 1st day of June, 2004
by and between AmericsourceBergen Drug Corporation ("AmerisourceBergen")
with an address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ and
Provectus Pharmaceuticals, Inc., with an address of ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
NOW, THEREFORE, for and in consideration of the mutual promises and
obligations contained in this Agreement, the parties agree as follows:
1. APPOINTMENT OF SUPPLIER
a. Engagement. AmerisourceBergen and Supplier agree to a
nonexclusive arrangement where Supplier agrees to sell products
("the Products") to AmerisourceBergen on the terms and conditions
set forth in this Agreement. Supplier hercby appoints
AmerisourceBergen (and all of its distribution centers) as an
authorized distributor of record for all of its Products.
Furthermore, Supplier will comply with all federal, state,
professional and other laws, statutes, regulations, rules,
policies and protocols requiring Supplier to publicly identify
all of its authorized distributors.
b. Term. This Agreement is effective as of the date set forth above
and will continue in effect until June 1, 2005. Thereafter, this
Agreement will automatical1y renew for subsequent terms of one
(1) year.
c. Breach and Termination. Either party may terminate this Agreement
for cause, upon 30 days written notice of a material default to
the other party of the reason for termination, and failure of
that party to cure the default within the 30 day period.
AmerisourceBergen may terminate this Agreement for any reason or
no reason upon sixty (60) days notice to Supplier. Any amounts
due shall be payable to AmerisourceBergen upon termination.
2. PRICE AND PAYMENT
a. Prices. All prices and offers by Supplier will be available to
all AmerisourceBergen and its divisions with similar classes of
trade.
b. Terms of Payment. Unless otherwise agreed, AmerisourceBergen will
pay all Supplier invoices for undisputed orders in accordance
with the due dates specified; provided that such terms are not
less favorable to AmerisourceBergen than any terms offered to any
other wholesale customer of Supplier and in no instances shall be
less than 2%, 30 days, net 31 days.
Under no circumstances shall Supplier make additions to any
invoice amounts due to Supplier, unless a memorandum from
AmerisourceBergen authorizing such additions has been issued by
AmerisourceBergen to Supplier. In the event a product is
purchased by AmerisourceBergen under Guaranteed Sale conditions,
terms will be 2%, 120, Net 121. AmerisourceBergen reserves the
right, among other remedies, to suspend further purchases of
Product(s) upon failure of Supplier to perform in conformance to
this agreement.
c. New Product Dating and Promotional Terms. Supplier will provide
AmerisourceBergen at least sixty (60) days additional dating on
invoices of new products, in addition to other pricing and
promotional terms provided to any other wholesale customer of
Supplier.
d. Electronic Payments. Supplier will provide AmerisourceBergen the
appropriate float days for all electric fund transfers ("EFTs").
Without AmerisourceBergen's prior written consent, the Supplier
shall not have the right to debit any AmerisourceBergen account
electronically. AmerisourceBergen shall not be deemed in default
or lose any cash discount by reason of any delay in receipt or
non-receipt by Supplier of funds transferred by EFT unless the
delay or non-receipt is the result of the negligence or willful
misconduct of AmerisourceBergen.
e. Administrative and Services Fees. AmerisourceBergen shall charge
administrative and service fees for work including rebates,
retroactive contracts, credit and rebill processes, marketing
support, recalls, corrections of incorrect UPC/NDC numbers, and
other actions taken on the suppliers behalf to support product
sales.
3. AMERISOURCEBERGEN OBLIGATIONS
a. Stock Product. AmerisourceBergen will make a good faith effort to
maintain sufficient stock of Products to satisfactorily supply
customer base demand.
b Legal Compliance. AmerisourceBergen will comply with federal,
state and local laws governing the purchase, handling, sale, or
distribution of Product purchased under this Agreement.
c. Documentation. Upon request with respect to any order for
controlled substances, AmerisourceBergen will furnish Supplier
with commercially reasonable assurances that (1)
AmerisourceBergen is authorized to possess and distribute such
controlled substances under federal law, and (2)
AmerisourceBergen is in compliance with all federal regulations
and guidelines promulgated under the Controlled Substances Act of
1970, as amended, with respect to the purchase, handling,
storage, repackaging, sale, or distribution of the controlled
substance ordered.
d. Electronic Orders. AmerisourceBergen will submit orders
electronically in the industry standard format.
e. AmerisourceBergen will honor all invoices billed to
AmerisourceBergen for drop shipments authorized by
AmerisourceBergen.
f. Storage Conditions. AmerisourceBergen will use reasonable
commercial efforts to maintain Products under proper conditions,
both in storage and in transit to AmerisourceBergen customers.
g. Short Dated Product. AmerisourceBergen will accept short dated
Product in its sole discretion and on a case-by-case basis.
h. Internal Controls. AmerisourceBergen will maintain internal
controls to facilitate compliance with its obligations under this
Agreement.
4. SUPPLIER OBLIGATIONS
a. Electronic Orders. Supplier will accept AmerisourceBergen orders
electronically in the industry standard format. If
AmerisourceBergen is requested to submit orders other than
electronically, AmerisourceBergen may require payment of a fee by
Supplier for each order submitted.
b. Set-up Sheets. Supplier will provide AmerisourceBergen with
completed New Item Set-Up Sheets for all new items and
promotional fact sheets for all promotions.
c. Minimum Orders. Supplier and AmerisourceBergen will set mutually
agreeable minimum purchase order amounts.
d. Delivery Times. Supplier will make commercially reasonable
efforts to ship all AmerisourceBergern orders completely and to
deliver them with no less than 8 days lead time. Supplier will
pay AmerisourceBergen an amount equal to two percent (2%) of the
invoice price on each order shipped with greater than eight (8)
days lead time as liquidated damages.
e. Fill Rate. Supplier agrees to maintain no less than a 96%
adjusted fill rate measured monthly. In the event that Supplier
does not meet the fill rate in any one month, Supplier agrees to
pay an amount equal to 2% of the average monthly amount ordered,
based upon the orders of the most recently completed quarter.
f. Shipping labels. Supplier agrees to clearly label all cartons and
or pallets with the following shipping information:
AmerisourceBergen Purchase Order
Ship-From Address
Ship-To Address
Product Description
(However, not for controlled substances)
Item Number
AmerisourceBergen Item Number
Case Quantity
g. Drop Ship Orders. In the event AmerisourceBergen elects to drop
ship products sourced from the Supplier to a customer, orders
will be shipped to AmerisourceBergen or the customer location at
AmerisourceBergen's discretion. All other provisions of the
agreement, including returns, remain in effect. Supplier must
verify in advance that customer is in good standing with the
servicing AmerisourceBergen division.
h. Invoicing. The Supplier will not invoice orders until the product
has been shipped to AmerisourceBergen. If orders are not released
on the date of the invoice, Supplier will add the additional
float days to the payment terms. Invoices transmitted
electronically will be sent in the industry standard format.
i. Shipment Charges, Title and Risk of Loss. All orders are to be
shipped by Supplier to AmerisourceBergen FOB destination freight
prepaid. Supplier is responsible for all additional charges
(detention, sorting, segregation) associated with the delivery.
Title to and risk of loss of Products sold hereunder will pass to
AmerisourceBergen upon delivery at the designated destination by
Supplier.
j. Short Dated Product. Supplier agrees to ship Products with not
less than twelve (12) months' shelf life remaining, unless
Product is manufactured with a limited shelf life less than the
above, in which case
such Product will be shipped per manufacturer's guidelines. At
AmerisourceBergen's discretion, short dated Product may be
accepted on a case-by-case basis in individual purchase
situations.
k. Notice of Promotional Activities. Supplier agrees to give
AmersourceBergen prior notice of marketing activities to
AmerisourceBergen customers involving guaranteed sale provisions
and/or other distribution and promotional activities.
l. Price Increases. If the amount of Product available is
restricted, Supplier agrees to make available the entire product
allotment to AmerisourceBergen at the time of each pre-announced
price increase. If the amount cannot be made available
immediately, AmerisourceBergen has the right to deduct the dollar
difference between the Wholesaler Acquisition Price (WAP) in
effect prior to the pre-announced price increase and the new WAP
multiplied by allotment quantities.
m. Price Protection. Supplier agrees to provide price protection to
AmerisourceBergen and to adjust on-hand and in-transit inventory
in the event of a product price reduction.
n. Accounts Receivable Statement. Supplier agrees to provide
AmerisourceBergen with a monthly accounts receivable statement of
all open transactions.
o. Date of Price. Supplier agrees to accept purchase orders at the
prices in effect on the day the order is transmitted. If purchase
orders are not received by AmerisourceBergen on the mutually
agreed schedule (which schedule shall not be later than six
months from the order date), then a deduction provision may be
implemented by AmerisourceBergen. Supplier will notify
AmerisourceBergen on the day the order is placed of any product
adjustments or held purchase order delays.
p. Price Changes. Supplier agrees to communicate all price changes
to AmerisourceBergen no later than the day they become effective
before 6:00 PM Eastern Time. If Supplier does not give notice in
accordance with this section, Supplier agrees to compensate
AmerisourceBergen for the dollar difference between the WAP in
effect prior to the price change and the new WAP multiplied by
the number of units sold between the effective date and the date
AmerisourceBergen became aware of the price change.
q. Pricing Variances. Supplier will take steps to resolve consistent
pricing variances caused by Supplier's systems and procedure
restraints in AmerisourceBergen's favor. If Supplier is unable to
correct its systems and/or procedures, AmerisourceBergen will
charge an administrative fee for each order requiring adjustment.
r. Credits. Supplier will pay AmerisourceBergen all compensation due
(including without limitation, payments, credits, product
allocations, and/or ▇▇▇▇ back program amounts) within 30 days of
determination. Exceptions shall be resolved with
AmerisourceBergen procurement management. If no attempts or
resolutions have been made by Supplier after ninety (90) days,
AmerisourceBergen reserves the right to make a deduction with no
recourse by Supplier.
s. Allocation. Supplier agrees to work with AmerisourceBergen to
ensure that any allocation program does not cause an out-of-stock
situation. If AmerisourceBergen validates to Supplier a potential
out-of stock condition, Supplier will adjust ArnerisourceBergen's
allocation to meet demand. AmerisourceBergen may require
compensation for lost sales and for expenses incurred in
connection with any AmerisourceBergen fill rate obligations to
its customers. Supplier will provide AmeriasourceBergen no fewer
than thirty (30) days advance notice of any changes in Supplier's
credit line and allocation processes.
t. Product Recall Reimbursement. Supplier agrees to abide by all
HDMA published guidelines for product recall reimbursement.
u. Legal Compliance. Supplier will comply with federal, state and
local laws governing the purchase, handling, sale, or
distribution of Products purchased under this Agreement.
v. Supporting Information. Supplier shall provide any documentation
or instructions to AmerisourceBergen reasonably necessary for
full compliance with federal, state and local laws with respect
to the handling, storage and distribution of the Products.
Supplier shall maintain federal, state and local registrations
necessary for the lawful handling of all Products and immediately
notify AmerisourceBergen of any denial,
revocation or suspension of any such registration or any changes
in the Products which AmerisourceBergen is authorized to
distribute. Supplier shall report any administrative, civil or
criminal action currently pending or arising after the effective
date of this Agreement by local, state or federal authorities
against Supplier, its officers or employees, regarding alleged
violations of the Controlled Substances Act of 1970, as amended,
or other comparable legislation, and provide AmerisourceBergen
with complete information concerning the disposition of such
action.
5. RETURNS
a. AmerisourceBergen will have the right to return to Supplier and
receive credit for both outdated Products (one year past
expiration) and Products still within six months of their
expiration date without incurring a Supplier restocking
fee/charge.
b. AmerisourceBergen will notify Supplier of its intent to return
product in order to obtain return authorization from Supplier if
required.
c. AmerisourceBergen will have the right to return new Product to
Supplier within the 12-month period following introduction for
full credit.
d. In the event that the Supplier changes its return policy in a
manner further limiting returns, AmerisourceBergen reserves the
right to return product based on the Supplier Returned Goods
Policy in effect at the time of Product purchase.
e. Supplier will accept AmerisourceBergen returned goods from a
third party reverse distribution processor.
f. If it is mutually agreed upon that a Product is not returnable:
- Supplier will reimburse AmerisourceBergen for product
destruction cost incurred.
- Supplier will reimburse AmerisourceBergen for the difference
between wholesaler acquisition cost ("WAC") and the average
contract price for the product destroyed.
6. DAMAGED PRODUCTS
Damaged Products. Should Products sold to AmerisourceBergen be
received in damaged condition (whether noted at receipt or
hidden), AmerisourceBergen will note on the delivery slip the
apparent damage and shall request that the Supplier remedy the
situation by accepting prompt return of Product and replacement
with undamaged Product. Damage will be reported immediately to
Supplier's Customer Service to determine the disposition
instructions and AmerisourceBergen shall hold such damaged
Products for inspection by the insurer, the carrier, or
Supplier's designated representative. Any inspection of damaged
merchandise, including the shipping carton, needs to be completed
within 15 days of reporting the incident. In the event the
Supplier or its agents cannot inspect and resolve the damage
claim within 30 days, AmerisourceBergen reserves the right to
deduct any payments made, charge a processing fee for each claim
occurrence, and return the product at the Supplier's expense.
7. SHIPMENT ERRORS
a. Shipment Errors. In the event of an incomplete shipment, a
shortage in shipment, the misdirection of any delivery, or any
overshipment, the Supplier shall immediately contact the
AmerisourceBergen purchasing department and shall comply with any
reasonable directions provided by AmerisourceBergen. The Supplier
will be responsible for any related freight or accessorial
charges caused by the error.
8. SUPPLIER DIRECT-TO-CUSTOMER CONTRACTS
a. Participating Customers. Any customer having a current direct
purchase contract with Supplier (the "Participating Customer")
may request that such purchases be made through AmerisourceBergen
as a vendor. Such request must be made by the Participating
Customer to AmerisourceBergen in writing. AmerisourceBergen
reserves the right to accept or refuse any such request at its
sole discretion. Supplier shall inform AmerisourceBergen of the
terms, pricing, and other relevant details of its contract with
the Participating Customer. AmerisourceBergen shall confirm with
Supplier that it has accepted the request. Contract updates and
changes should immediately be submitted to the AmerisourceBergen
accounting
department for prompt application. Contract updates will be
retroactive to the date agreed to between Participating Customer
and Supplier. AmerisourceBergen reserves the right to charge the
Supplier for all credit and rebill activity to the Customer
resulting from Supplier's untimely notification to
AmerisourceBergen of contract changes. SUPPLIER CANNOT MAKE
CLAIMS TO THE PARTICIPATING CUSTOMER REGARDING AMERISOURCEBERGEN
DELIVERY PERFORMANCE.
b. Chargeback Claims. AmerisourceBergen shall provide proof of
chargeback claims with the Participating Customer.
AmerisourceBergen requires the use of EDI transactions to submit
claim and Supplier agrees to provide acknowledgement in return.
All chargeback claims are to be paid within 15 days from the date
of claim.
c. Issuance of Credit. Upon its receipt and approval of
AmerisourceBergen's claims submitted under paragraph 8b above.
Supplier shall issue a credit memo to AmerisourceBergen in the
amount of the difference between the wholesale price on the date
invoiced and the undiscounted contract price agreed upon between
AmerisourceBergen and the Participating Customer. Such credit
shall be applied against subsequent purchases by Participating
Custorner pursuant to this Agreement. AmerisourceBergen will only
deduct the credit amount when chargeback claims are not being
processed within 15 days of the claim. In the event a
Participating Customer returns Product(s) to AmerisourceBergen
and such Product(s) was reported by Participating Customer as a
sale subject to a chargeback, Participating Customer shall report
such returns in accordance with this section and Supplier shall
reverse any chargebacks issued for such Product(s) by appropriate
adjustment to any credit memo(s) from Supplier to
AmerisourceBergen.
d. Time Limitation. AmerisourceBergen chargeback claims must be
submitted within six (6) months from the date of sale to the
Participating Customer. In the event new information surfaces
that cause corrections and adjustments to sales reports, claims
can be reopened and resubmitted within twelve (12) months of the
date of sale. AmerisourceBergen reserves the riht to deduct
unpaid claims from current purchase activity.
e. Termination/Modification. AmerisourceBergen reserves the right to
terminate participation in the Supplier's direct-to-customer
programs with ten (10) days notice to Participating Customer and
Supplier. In the event of such termination, AmerisourceBergen
shall receive credit for sales made prior to the date of
termination, provided that all such sales are reported within the
periods indicated above. Participating Customer shall rcturn to
AmerisourceBergen any contract specific Products remaining in its
inventory at the time of termination, and shall receive credit
for these Products. AmerisourceBergen reserves the right to
return to Supplier any excess inventory of product(s) resulting
from program termination.
f. All direct to customer contract and chargeback matters not set
forth in this section are governed by the AmerisourceBergen
Contract and Chargeback Administration Policy as amended from
time to time.
9. INSPECTION OF RECORDS
Supplier and AmerisourceBergen agree to maintain complete and accurate
records of all transactions related to the conduct of business. Both
parties will perrmit inspection of records upon reasonable notice
during regular business hours for the purpose of resolving business
disputes. If based on any such inspection or audit it is determined
that either party has received excess credits or taken any unearned
discounts, the party shall immediately pay any excess amount.
10. CONFIDENTIALITY
All documents and other information provided to Supplier by
AmerisourceBergen pursuant to this Agreement, including any
information concerning prices, quantities purchased by any customer or
other terms and conditions, shall be held by Supplier in strict
confidence and not disclosed either directly or indirectly to any
third party during the term of this Agreement and for five (5) years
thereafter Supplier acknowledges that money damages alone would not be
a sufficient remedy for any violation by it of the terms of this
Agreement addressing use or disclosure of other confidential
information of AmerisourceBergen and that AmerisourceBergen will be
entitled (in addition to any other remedies which may be available to
it at law or in equity) to specific performance and injunctive relief
as remedies for any such violation.
11. WARRANTY/INDEMNITY
a. Warranty. Supplier guarantees to AmerisourceBergen and each of
its subsidiary corporations and affiliates that each shipment or
other delivery of any food, drugs, devices cosmetics, or other
merchandise now or hereafter made by the undersigned, its
subsidiaries, divisions or affiliated companies to or on the
order of AmerisoureBergen or any of its subsidiaries or
affiliates will not be, at the time such shipment or delivery,
adulterated, misbranded, or otherwise prohibited within the
meaning ofthe Federal Food, Drug and Cosmetic Act, 21 U S C A 301
et Seq., as amended, and in effect at the time of shipment or
delivery (the Act) or within the meaning of any applicable state
or municipal law in which the definition of adulteration or
misbranding are substantially the same as those contained in the
Act, and such merchandise is not, at the time of such shipment or
delivery, merchandise which may not be introduced or delivered
for introduction into interstate commerce under the provisions of
sections 301, 404 or 505 of the Act (21 U.S.C.A.331, 344 and
355), and such merchandise is merchandise which may be legally
transported or sold under the provisions of any other applicable
federal, state or municipal law. Supplier guarantees further that
only those chemicals or sprays approved by federal, state or
municipal authorities have been used, and any residue in excess
of the amount allowed by any such authorities has been removed.
b. Product Indemnification. Supplier agrees to defend, indemnify and
hold AmerisourceBergen and each of its subsidiaries and
affiliates harmless against any and all claims, losses, damages,
and liabilities whatsoever (and expenses connected therewith,
including counsel fees) arising as a result of (a) any actual or
asserted violation(s) of the Act or any other federal, state or
local law or regulation by virtue of winch products or
merchandise sold, supplied, or delivered by Supplier shall be
alleged or determined to be adulterated misbranded, mislabeled or
otherwise not in full compliance with or in contravention of any
federal, state or local law or regulation, (b) the possession,
distribution, sale and/or use of or by reason of the seizure of,
any of the Supplier's Products, including any prosecution or
action whatsoever by any governmental body or agency or by any
private party, including claims of bodily injury, death or
property damage, and (c) any actual or asserted claim that
Supplier's Products or merchandise infringe any proprietary or
intellectual property rights of any person, including without
limitation the infringement of any trademarks or service names,
trade names, trade secrets, inventions, patents or the violation
of any copyright laws or any other applicable federal, state or
local laws.
c. Insurance. Supplier agrees to maintain primary and
noncontributing Products Liability Insurance of not less than US
$5,000,000.00 per occurrence, Combined Single Limit (Bodily
Injury and Property Damage) including AmerisourceBergen and its
subsidiaries and affiliates as Additional Insured including a
Broad Form Vendors Endorsement, with provision for at least 30
days' prior written notice to the additional Insured in the event
of cancellation or material reduction of coverage and upon
request promptly submit satisfactory evidence of such insurance.
All insurance coverage must be with a carrier acceptable to
AmerisourceBergen, at its sole discretion.
d. The provisions set forth in this Section 11 are in addition to,
and in lieu of, any terms set forth in any purchase orders
accepted by the undersigned or any separate agreement entered
into between AmerisourceBergen or any of its subsidiaries or
affiliates and Supplier or any of its affiliates. In the event of
any conflict between the language of other documents and the
language set forth herein, the language herein shall be
controlling.
12. RELATION OF PARTIES
a. Except as otherwise specified, AmerisourceBergen is acting
pursuant to this Agreement in the capacity of an independent
contractor dealing in the Products of Supplier as well as
products of other manufacturers.
b. AmerisourceBergen will not make any representations or warranties
relating to the Products, nor shall AmerisourceBergen have
authority to bind Supplier unless agreed between Supplier and
AmerisourceBergen.
c. Supplier shall not use AmerisourceBergen's name trademarks or
commercial symbols without the prior written consent of
AmerisourceBergen.
d. Nothing contained in this Agreement shall be interpreted or
construed so as to characterize the relationship between the
parties as a joint venture, partnership, agency, or franchise for
any purposes whatsoever.
13. INDEMNIFICATION
Supplier shall indemnify, defend and hold harmless AmerisourceBergen, its
agents, servants, employees, officers, directors, attorneys, subsidiaries
and assigns from and against all claims (including, but not limited to,
product liability claims), losses, damages, liabilities and expenses
(including, but not limited to, attorneys' fees and court costs) arising as
a result of negligence, illegality or wrongdoing of any kind alleged or
actual on the part of Supplier. This is in addition to any remedies
specifically set forth elsewhere in this Agreement.
14. MISCELLANEOUS
a. Notice. Any notice required or permitted hereunder shall be
deemed given when deposited, postage prepaid, in the United
States mail addressed to the receiving party at its address
indicated on page 1 of this Agreement or to such other address as
such party shall have indicated by written notice. A copy of any
notice provided to AmerisourceBergen must also be sent to
AmerisourceBergen's General Counsel at the AmerisourceBergen
address listed on page 1.
b. Assignment. This Agreement may not be assigned by either party
without the prior written consent of the other party.
Notwithstanding the foregoing, AmerisourceBergen may assign its
rights and obligations hereunder without the consent of Supplier
to a subsidiary or affiliate or to an entity which purchases all
or substantially all of AmerisourceBergen's or Supplier's stock
or assets or acquires control of AmerisourceBergen or Supplier
whether by merger, consolidation or any other means.
c. Governing Law. The Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
d. Legal Compliance. It is the intent of the parties to this
agreement to comply now, and hereafter during the term of this
agreement with all federal, state, professional and other laws,
statutes, regulations, rules, policies and protocols applicable
to the subject matter of the agreement and the relationship of
the parties, including without limitation, any reporting
obligations under any state or federal law. In the event there is
any change in law, regulation or interpretation thereof that has
the effect of prohibiting any right or obligation of a party
under the agreement or materially affects such right or
obligation, then such party may upon notice to the other party
immediately terminate this agreement in whole or in part.
e. Force Majeure. Each party's obligation under this Agreement will
be excused to the extent any delay is caused by strikes or other
labor disturbance, acts of God, war, or other conditions beyond
the reasonable control of that party, but only during the
duration of such condition.
f. Benefits. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and
permitted assigns.
g. Complete Agreement. This Agreement contains the entire agreement
between the parties and supersedes any prior agreement or
understanding between the parties THE TERMS OF ANY PURCHASE ORDER
OR OTHER DOCUMENT ISSUED BY AMERISOURBBERGEN AND AGREED TO BY
SUPPLIER MAY SUPERCEDE THISS AGREEMENT ONLY FOR THE PURCHASE
TRANSACTION FOR WHICH IT APPLIES AND ONLY ON THE POINTS THAT ARE
IN CONFLICT. Acceptance and shipment of a Purchase Order is
acceptance of the differences with this agreement.
h. Modification. This Agreement may be modified, or rights hereunder
waived, only in a writing signed by both parties that expressly
references this Agreement.
i. Attorney's Fees. In the event that AmerisourceBergen brings an
action for a breach of this Agreement by Supplier, Supplier shall
pay AmerisourceBergen's reasonable attorneys' fees and expenses.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
Dated: June 1, 2004
/s/ SUPPLIER /S/ AMERISOURCEBERGEN
