TERMS AND CONDITIONS

 

1. Terms and Conditions: The following terms and conditions (the "Terms") shall be the sole terms and conditions governing the sale of all products by PSS to Customer. The identity of Customer, the identity of the products being purchased (the "Products"), the quantity of Products being purchased, the destination for delivery of the Products and other material information concerning Customer's order shall be set forth in Customer's purchase order ("Order") provided to PSS. These Terms are hereby incorporated into and made a part of each Order. Upon the earlier of PSS' written acceptance of the Order or acceptance by Customer of Products furnished by PSS in response to such Order, the Order, the written acceptance, if any, and these Terms shall be the complete and final agreement (the "Agreement") between PSS and Customer with respect to the sale of Products identified in the Order, provided, however, that no pre-printed or form language appearing in Customer's Order shall become a part of the Agreement. PSS' acceptance of any Customer Order is expressly made conditional upon Customer's acceptance of these Terms, and PSS objects to any additional or different terms and conditions, whether contained in Customer's Order or otherwise. PSS will not be deemed to have waived these terms and conditions of sale if PSS fails to object to provisions contained in Customer's forms or otherwise.
   
   
   
2. Prices and Payment: The prices for the Products do not include any duties or sales, use excise or similar taxes, which shall be paid by Customer. Payment terms are net fifteen (15) days after the end of month of the invoice without any right of set-off. Past due amounts shall bear interest at the rate of 1.5% per month or the maximum amount allowed by applicable law, whichever is less, until paid in full. Customer shall reimburse PSS for all costs and expenses (including reasonable attorneys' fees and court costs) incurred by PSS in connection with collecting any past due amount.
   
   
   
3. Delivery: PSS will arrange for the Products to be delivered to Customer. For all special, custom or expedited orders, Customer shall pay all transportation and other fees associated with the delivery of the Products to Customer's facility. Title and risk of loss shall pass to Customer at Customer's facility.
   
   
   
4. Inspection, Acceptance or Rejection: Customer shall inspect the Products promptly after their receipt and in any event within three (3) days of receipt and will give PSS notice of any non-conformity or defect within such period. Customer's failure in either respect will constitute a waiver of such non-conformity or defect. Upon return of prescription drug Products, Customer will be required to sign a statement that such Products were purchased from PSS and have been stored under proper conditions as required by the manufacturer of the Product.
   
   
   
5. Confidentiality: Without the prior written consent of the other party, neither party shall disclose the Agreement or any term hereof (including pricing of Products) to any third party or make any media release or other public announcement relating or referring to the Agreement or other party.
   
   
   
6. DISCLAIMER OF WARRANTIES: PSS DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
   
   
   
7. LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE USE OR PERFORMANCE OF THE PRODUCTS EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN NO EVENT SHALL PSS' LIABILITY UNDER OR IN CONNECTION WITH THE AGREEMENT OR THE PRODUCTS SOLD HEREUNDER EXCEED THE PURCHASE PRICE OF THE PRODUCTS ON WHICH SUCH LIABILITY IS BASED.
   
   
   
8. Force Majeure: PSS shall not be liable to Customer for any delay or failure in performance due to causes beyond PSS' commercially reasonable control, acts of God, acts of Customer, acts of civil or military authority, fires, labor disputes, floods, epidemics, quarantine, restrictions, war, riot, inability to obtain Products from the manufacturer of the Products, delays in transportation or any other commercial impracticability.
   
   
   
9. Customer's Licenses: All licenses, license numbers and related information provided by Customer, including State medical license numbers and D.E.A. license numbers, may be used by PSS to obtain a copy of and verify Customer's licenses. Customer authorizes the use of such licenses, as applicable, for the purchase and delivery of prescription drug products to Customer at each facility designated by Customer.
   
   
   
10. Anti-Kickback Law Discounts and Rebates: The dollar value of the discounts or other reductions in price pursuant to this Agreement, if any, and any other items and services not paid for by Customer and received by Customer from PSS under this Agreement are "discounts and other reductions in price" under Section 1128B(b)(3)(A) of the Social Security Act (42 U.S.C.§ 1320-a-7b(b)(3)(A)), as amended. It is the intent of the parties to comply with the Anti-kickback Law Discount Safe Harbor (42 C.F.R.§ 1001.952(h) as amended). The Discount Safe Harbor requires that certain discounts be reported and or passed on to Federal and State health care programs, such as Medicare and Medicaid. Customer understands and agrees it must properly disclose the discounts or reductions in price, and reflect such discounts or reductions in price in the costs claimed or charges made, under any Federal or State health care program which provides cost or charge-based reimbursement to Customer for the items and services covered by this Agreement. Customer shall be solely responsible for determining whether the savings or discounts it receives must be reported or passed on to payors.
    
    
    
11. Miscellaneous: No provision hereof may be amended or waived without the prior express written consent of PSS and Customer. Customer may not assign the Agreement or any rights or obligations hereof. If any provision is determined to be legally invalid or unenforceable, then such provision shall be modified to the least extent to make such provision valid and enforceable, if permissible, or, if not, such provision shall be ineffective only to the extent of such invalidity or unenforceability. Each party shall comply with all laws, rules and regulations applicable to the Agreement and transactions hereunder. The Agreement and the rights, obligations and remedies of the parties shall be governed by and construed and enforced in accordance with the laws of the State of Florida, excluding conflict of laws. These Terms and Conditions The Agreement encompasses the entire agreement of the parties and supersedes all previous understandings and agreements between the parties, whether oral or written. Customer acknowledges and represents that it has not relied on any representation, assertion, guarantee, warranty, collateral contract or other assurance, except those set out in the Agreement, made by or on behalf of any other party or any other person or entity whatsoever, prior to the execution of the Agreement. Sections 2, 5, 6, 7, 10 and 11 will survive indefinitely.