TERMS & CONDITIONS
CONSUMER DRUG TAKE-BACK PROGRAM (PURCHASE AGREEMENT)
These Terms and Conditions, together with the applicable order form or enrollment form attached hereto and incorporated herein (“Order Form”) (collectively, the “Agreement”) is made and is effective as of the date indicated on the Order Form (the “Effective Date”), by and between Inmar Rx Solutions, Inc., a Texas corporation with offices at 3845 Grand Lakes Way, Grand Prairie, Texas 75050 (“Inmar”), and the client indicated on the Order Form (“Client”).
This Agreement governs the use of all Consumer Drug Take-Back (“CDTB”) containers and supplies and CDTB disposal services provided hereunder by Inmar (collectively, the “Services”), including, without limitation, every order by Client of the Services for Client’s pharmacy locations (“Location(s)”).
In consideration of the foregoing recitals incorporated by reference and the covenants herein, the parties agree to be bound as follows:
1. Service Overview. Inmar will provide Client with a program for the collection and proper disposal of patient-owned surplus medications that can be implemented and managed in compliance with the DEA Secure and Responsible Drug Disposal Act of 2010, as described below.
2. Definitions.
2.1. Receptacles: The metal exterior box provided to Client by Inmar pursuant to the Order Form.
2.2. Containers: The inner cardboard box and the liner provided to Client by Inmar pursuant to the Order Form.
2.3. Destruction Services: Services arranged by Inmar for the destruction of the contents of the Container.
2.4. Location(s): Client’s pharmacy location(s), a list of which Client provided in the applicable Order Form or in writing to Inmar (email to suffice) shall be considered to be attached hereto as the Location Exhibit and incorporated herein by reference.
3. Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for the initial term indicated on the Order Form (the “Initial Term”). If no Initial Term is indicated on the Order Form, the Initial Term shall be for three (3) years. At the end of the Initial Term, unless otherwise indicated on the Order Form, this Agreement shall be renewed automatically for one (1) year periods (each one (1) year period shall be defined as a “Renewal Term”) unless otherwise terminated as set forth in Section 6. The Initial Term and all Renewal Terms, if any, are collectively referred to as the “Term” of this Agreement. Upon expiration or earlier cancellation of this Agreement pursuant to Section 6 below, Client will take ownership of any CDTB Receptacle that Client has received from Inmar pursuant to this Agreement.
4. Client Obligations.
4.1. Client agrees to engage Inmar to provide the Services only when doing so will not violate any applicable federal, state or local laws or regulations. In order to receive the Services, Client agrees to register as a collector with the DEA, and Client shall provide proof of such registration for each Location to Inmar. Client will ship the Containers only as provided by Inmar (and not in other packaging), and otherwise packaged as shown in the packing instructions provided by Inmar. Client understands and acknowledges that Inmar has received a special permit from the Department of Transportation (DOT), allowing less stringent shipping requirements for CDTB returns managed in compliance with Drug Enforcement Administration (DEA) regulations. The Special Permit (“Special Permit”), available here, allows Client to ship CDTB returns in accordance with the reduced regulatory requirements provided in the Special Permit. Client warrants that its Locations shall manage the CDTB returns under the terms specified in the Special Permit and that its Locations shall comply with all federal, state and local regulatory requirements, including but not limited to, DEA, DOT, and Environmental Protection Agency (EPA) regulations.
4.2. Client agrees to pay Inmar the fees set forth on the Order Form on an annual basis within thirty (30) days of the Effective Date and each anniversary of the Effective Date at the beginning of each year of the Term unless otherwise agreed upon on the Order Form.
5. Services and Process. Inmar will supply Client with the number of Receptacles indicated on the Order Form, if any. Each Receptacle provided by Inmar will be assigned a specific account number. Each Container will contain a serialized inner liner. Inmar will supply Client with three (3) Containers per Receptacle with the initial order. During the Term, Inmar will provide Client with sufficient supplies, including replenishment Containers, to operate the program. As a part of the Destruction Services, Inmar will arrange for disposal of the Containers by a third-party waste destruction provider in accordance with applicable laws and regulations. (If Client does not wish to engage Inmar to provide the Receptacles, Client may engage Inmar to solely provide the Containers and the Destruction Services.)
6. Cancellation.
6.1. Either party may cancel an order for Services, with or without cause, upon thirty (30) days written notice to the other party. Upon receipt of such notice of cancellation of Services, Inmar shall discontinue its performance of such cancelled order for Services.
6.2. If Client cancels all or part of the Services, such partial cancellation of Services to be based upon the cancellation of a specific Receptacle’s account number, Client agrees to pay Inmar for all Services performed prior to the effective date of cancellation, at the agreed upon rates, plus Inmar’s costs incurred to the effective date of cancellation. Client shall ship any full or partially full Container(s) associated with the cancelled Receptacle(s) as set forth in Section 5, and Client shall destroy any remaining empty Containers and shall deface Inmar’s logo or any other identifying marks on the cancelled Receptacle(s).
7. Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, INMAR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS PROVIDED BY IT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AGAINST INFRINGEMENT, THAT SUCH PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE PRODUCTS PROVIDED BY INMAR ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. IN NO EVENT WILL INMAR BE LIABLE TO CLIENT FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSSES, OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), OR LOST TIME, SAVINGS, PROPERTY, PROFITS, OR GOODWILL, WHICH MAY ARISE IN CONNECTION WITH THE PRODUCTS PROVIDED BY INMAR, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EVEN IF INMAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, OR COSTS.
8. Confidentiality. In connection with this Agreement, each party (in such capacity, the “Disclosing Party”) has disclosed or may disclose to the other party (in such capacity, the “Receiving Party”) certain of its trade secrets, know-how and other Confidential Information (as defined below). The Receiving Party agrees not to use any of the Disclosing Party’s Confidential Information for any purpose except to perform its obligations under this Agreement. The Receiving Party further agrees (i) not to disclose any of the Disclosing Party’s Confidential Information to any third party without the prior written approval of an authorized representative of the Disclosing Party; (ii) not to use any of the Disclosing Party’s Confidential Information for its own or a third party’s benefit; and (iii) to undertake reasonable precautions to safeguard and protect the confidentiality of the Confidential Information. “Confidential Information” means any information disclosed by the Disclosing Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including without limitation all financial and business information, computer software, processes, pricing policies, product plans, designs, market research and analysis, costs, customer and supplier lists, strategies, forecasts, know-how, data, methodologies, concepts, tools, trade secrets, inventions and ideas, and all other information disclosed by the Disclosing Party pursuant to this Agreement. Confidential Information shall not, however, include any information which Receiving Party can establish (i) at the time of disclosure or thereafter is in the public domain or becomes generally known to the public through no fault of the Receiving Party; (ii) was available to the Receiving Party on a nonconfidential basis from a source other than the Disclosing Party, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with the Disclosing Party; (iii) is known to the Receiving Party (as evidenced by its written records) prior to receipt thereof from the Disclosing Party; or (iv) is required to be disclosed by a court of competent jurisdiction or by law, provided that the Disclosing Party is given prior written notice of such disclosure (to the extent legally permitted). The obligations of nondisclosure and confidentiality undertaken by each party under this Agreement shall continue for the term of this Agreement and for a period of four (4) years following the termination or expiration of this Agreement, except that Confidential Information identified as a trade secret shall be subject to and protected by such obligations of nondisclosure and confidentiality in perpetuity.
9. Limitation. Unless otherwise limited herein, the liability of Inmar to Client under this Agreement or otherwise, regardless of the form of claim or action, will not exceed the amounts actually paid by Client to Inmar for Services provided by Inmar under this Agreement in the prior twelve (12) month period. No action arising out of this Agreement may be brought by either party more than one (1) year after the date on which the cause of action has accrued.
10. Indemnification of the Parties. Except as otherwise limited herein, each party (the "Indemnitor") agrees to defend, indemnify, and hold harmless the other party (the "Indemnitee") and its officers, directors, and employees from and against any and all damages, losses, fines, costs and expenses (including reasonable attorneys' fees), judgments, and liabilities (collectively, "Expenses") that (i) are made against or incurred by the Indemnitee in connection with a third party claim and (ii) arise out of or relate to acts or omissions of the Indemnitor in the performance of this Agreement that constitute gross negligence or willful misconduct on the part of the Indemnitor, so long as such Expenses are not primarily caused by the Indemnitee, its officers, directors, or employees. The indemnification set forth in this Section is conditioned upon (a) the Indemnitee providing the Indemnitor prompt written notice of any claim or cause of action upon which the Indemnitee intends to base a claim of indemnification hereunder, (b) the Indemnitee providing reasonable assistance and cooperation to enable the Indemnitor to defend the action or claim hereunder, and (c) the Indemnitee refraining from making prejudicial statements associated with such claim without the prior written consent of the Indemnitor.
11. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without reference to the conflict of law rules of such state. The terms and conditions of this Agreement may be waived or amended only by a written instrument executed by an authorized representative of each of the parties. Failure by either party to enforce at any time any of the provisions of this Agreement shall not constitute a waiver of such provision and not in any way affect the validity of this Agreement or any part thereof or the right of the other party thereafter to enforce the provisions hereof. The provisions of this Agreement are severable, and any provision of this Agreement that is determined to be void or unenforceable by a court of competent jurisdiction shall not affect the enforceability of the remaining provisions herein. This Agreement will not be construed as constituting either party as partner, joint venturer or fiduciary of the other or to create any other form of legal association that would impose liability on one party for the act or failure to act of the other or as providing either party with the right, power or authority (express or implied) to create any duty or obligation of the other. This Agreement, together with all Order Forms and exhibits attached hereto, sets forth the entire understanding between Inmar and Client with respect to the subject matter hereof and supersedes all prior agreements, written or oral, between the parties with respect to the subject matter hereof. This Agreement will be binding upon, and will inure to the benefit of, the parties hereto and their respective successors and permitted assigns. All notices herein provided for shall be considered as having been given upon being placed in the U.S. mail, certified postage prepaid or via nationally recognized overnight courier to the recipient at the address herein set forth in the introductory paragraph in this Agreement or to such other address as may be given to the other party in writing, with a copy of such notice sent to the attention of the recipient’s legal department. The representations and warranties under this Agreement, which, by their terms and context show the parties intended them to survive the termination of this Agreement for any reason, including but not limited to, provisions governing confidentiality, ownership, indemnification and liability, shall survive any expiration or termination of this Agreement.
12. Signatures. Any order form, return authorization form or other document that incorporates the terms and conditions of this Agreement by reference, may be executed (i) in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement, and (ii) using a manual signature, or a photocopy or other electronic reproduction of a manual signature, any of which shall have the same binding effect as an executed original.