PHARMACEUTICAL PRODUCT PURCHASE ORDER TERMS AND CONDITIONS (Rev. 2/26/16) **READ CAREFULLY**

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1 1. Definitions. PHARMACEUTICAL PRODUCT PURCHASE ORDER TERMS AND CONDITIONS (Rev. 2/26/16) **READ CAREFULLY** As used in these Terms and Conditions, Vendor means the seller specified in the Master Pharmaceutical Vendor Agreement (the Vendor Agreement ) with Purchaser. Purchaser means the MEIJER entity specified in the Vendor Agreement. Contract Documents mean the following: (i) the Master Pharmaceutical Vendor Agreement between Purchaser and Vendor and any addendum specified on Page 1 of that Agreement; (ii) all Trade Agreements between the parties; (iii) these Terms and Conditions; (iv) Purchaser s Pharmaceutical Vendor Requirements and Reference Guide (available for downloading at Purchaser s VendorNet at and (v) the business terms of Purchaser s electronic purchase orders ( Orders ) submitted to Vendor, including product prices, quantities, descriptions, and ship dates. 2. Non-Conforming Products. Purchaser may refuse to accept or pay for any unordered, excess, or substitute products or products shipped that do not conform to all terms and conditions of the Contract Documents ( Non-Conforming Products ), including shipment and delivery dates. 3. Cancellation. Purchaser may cancel any Order without penalty by notice to Vendor on or before the Cancellation Date specified in the Order. If, after cancellation, Vendor ships the products and Purchaser decides to accept them, Vendor will, upon request, pay Purchaser a warehousing fee of Five Percent of Vendor s invoice cost, or $100, whichever is greater. 4. Discontinuance of Purchaser s Operations; Payment Terms; Taxes. Purchaser may reject any shipment of products from Vendor and will have no obligation to pay for the products if Purchaser s business or operations are discontinued in whole or in part by reason of fire, flood, earthquake, war, civil disorder, or any other act or event beyond Purchaser s reasonable control. All product shipments will be at the prices and the terms of sale set forth in the Contract Documents, but payment terms must be calculated to result in the lower cost based either (i) on the date that the products are physically received at Purchaser s designated facility; or (ii) the Vendor s invoice date. The specified product prices include all taxes except those which Vendor is required by law to collect from Purchaser. These taxes, if any, will be separately stated in Vendor s invoice and will be paid by Purchaser unless an exemption is available. 5. Discounts. Purchaser and Vendor agree that any product rebate or discount is intended to be a discount or other reduction in price as contemplated by U.S.C. 1320a-7b(b)(3)(A) and as set forth in the "discount" Safe Harbor provided by 42 CFR (h), regardless of how titled. All product discounts are arrived at as a result of arm s length transactions. Purchaser agrees that to the extent it may be required to do so under applicable state or federal law, it will properly disclose and appropriately reflect the discount amounts in any costs claimed or charges made to Medicare, Medicaid, or other federal or state health insurance programs that cover patients of Meijer TM pharmacies and require disclosure, all as set forth in 42 C.F.R (h). Vendor will fully and accurately report these discounts on the invoice, coupon or statement submitted to Purchaser. Vendor agrees that Purchaser is Purchase Order Terms and Conditions Pharmaceutical Product v Page 1

2 not an entity that reports costs on a cost report required by the U.S. Department of Health and Human Services ( DHHS ) or a state agency and is not an individual or entity described in 42 CFR (h)(2)(i) or (h)(2)(ii). Vendor has informed Purchaser that it may be obligated to report the discounts and provide information upon request to the DHHS Secretary or state agency as appropriate. Vendor further agrees that it will refrain from doing anything that would impede Purchaser s obligations under 42 CFR Purchaser and Vendor will cooperate and assist each other in providing any necessary documentation related to the discounts. And neither party will inhibit the other party s compliance with applicable laws and regulations by failing to timely provide the necessary documentation. 6. Specific Express Warranties. a. Vendor warrants and represents that on the date that title passes to Purchaser, all products (and any components thereof) shipped to Purchaser will: (1) be free of impurities and defects; (2) be fit for their intended purpose; (3) be free of all liens and encumbrances; (4) comply with all applicable federal and state laws and regulations, including all U.S. Food and Drug Administration regulations and commercially reasonable best distribution practices; (5) (a) be sourced from manufacturers who are reputable and operate in accordance with current, good manufacturing practices and who are duly registered with the United States Food and Drug Administration and (b) meet all specifications of testing by Vendor, which such testing is performed by Vendor upon receipt of active pharmaceutical ingredients according to standard operating procedure appropriate and specific to each specific product: and (6) be new, will include the original manufacturer s warranty, and will operate in accordance with, and conform to, the applicable specifications. Vendor will correct any failure of the applicable products to operate in accordance with this warranty by correcting the defect or otherwise replacing the defective product at no additional cost to Purchaser. In the event Vendor is unable to correct such Defect within thirty (30) calendar days of notice to Vendor by Purchaser, Vendor will replace the defective product with a Product that conforms to specifications or, at Purchaser s option, Purchaser may return the product, and Vendor will then promptly refund to Purchaser all amounts paid by Purchaser for such product. b. Vendor further warrants and represents that no products shipped, delivered or sold to Purchaser will be adulterated or misbranded within the meaning of: (1) the U.S. Food, Drug and Cosmetic Act of 1938, 21 U.S.C. 301, et seq., as amended and in effect at the time of shipment (the Act ), or any regulation promulgated under the Act; (2) any successor or substitute federal law; and (3) any state or municipal drug law, ordinance or regulation addressing the adulteration and misbranding of products or that describe products that may not be introduced into interstate commerce. Purchase Order Terms and Conditions Pharmaceutical Product v Page 2

3 (4) If the products do not comply with: (a) (b) (c) applicable federal, state or municipal laws or regulations; or any warranty or representation given by Vendor; then to the extent that Vendor is responsible for the non-compliance, Vendor will, in addition to any obligation it may have at law for breach of warranty, be liable for the cost of any voluntary or involuntary recall, recovery, repurchase, reconditioning, repackaging, or return procedures and the cost of testing the non-compliant products. c. Vendor warrants, represents, and covenants that it: (1) is not currently excluded from participation in federal or state health care programs; (2) will not become excluded from participation in these programs during the term of this agreement; and (3) is not the subject of any known pending exclusion proceeding. (4) If Vendor becomes aware of its violation of the requirements of this subsection, it will notify Purchaser (via to within 24 hours of receiving notice of its exclusion from a state or federal health care program. d. Vendor represents and warrants that all statements and claims made, whether solely by Vendor or in cooperation with or at the Purchaser s direction, in any packaging, labeling, advertising, or other consumer material provided at any time about the products will be truthful, accurate, and not misleading. And these statements and claims will be substantiated, if necessary, at the time they are made. e. Vendor makes the following continuing material representations about its financial condition and legal status. Vendor: (1) warrants that it is solvent and not under any threat of insolvency; (2) is able to pay its obligations as they become due and will notify Purchaser immediately if Vendor becomes insolvent or otherwise becomes unable to pay its obligations as they become due; (3) and its management personnel have not been charged, found guilty or pled guilty to any federal or state felony charge for at least seven years before the date of Vendor s first shipment of products to Purchaser; (4) has not failed to disclose a material adverse fact about its legal status or business condition; (5) has not made any false or misleading factual statement to Purchaser about Vendor s business or legal status; (6) is not prohibited from consummating the transactions contemplated by this agreement by any applicable law, agreement, instrument, restriction, or by a judgment, order or decree of any governmental authority having jurisdiction over Vendor or its property; (7) in performing its obligations under this Order, will not be in violation of or cause Purchase Order Terms and Conditions Pharmaceutical Product v Page 3

4 a default under any applicable law, agreement, instrument, covenant, condition, restriction, judgment, order, or decree; and (8) acknowledges that Purchaser will rely on these material representations in all product purchases from Vendor. f. Any Vendor services performed related to the sale of the products will be performed by qualified personnel in a competent, diligent, and workmanlike manner, in strict conformity to all applicable industry standards. g. Vendor cannot limit or disclaim any of the warranties stated in this section, and they will survive Purchaser s payment, acceptance, inspection, or failure to inspect the products. 7. Assignment. Vendor hereby assigns to Purchaser all assignable warranties, representatives and indemnities granted to Vendor by manufacturers of the products (and any components thereof) shipped to Purchaser hereunder, and all remedies for breach of such warranties, representatives and indemnities. To the extent that Vendor is not permitted to assign any of such warranties and indemnities to Purchaser, Vendor will enforce such warranties and indemnities on behalf of Purchaser at Purchaser s direction to the extent Vendor is permitted to do so under the terms of the applicable third party agreements. 8. Confidentiality. As used in this section, Confide3ntial Information means information disclosed by Meijer that: (a) is not publically available; (b) is marked or denoted as confidential; (c) Vendor should reasonably understand to be confidential, including all data provided by Meijer to Vendor that is necessary for Vendor to furnish products and perform services under the Agreement; or (d) is more fully described in another confidentiality or non-disclosure agreement between the parties. Vendor will not disclose Meijer s Confidential Information to third parties or use Meijer s Confidential Information for any purpose other than as permitted by the Vendor Agreement. If Vendor is required to disclose Confidential Information under applicable law, including an order by a court or governmental agency, Vendor may do so, but only to the limited extent necessary to comply with such requirement, and only upon Vendor providing prompt notice of such requirement to Meijer and providing Meijer reasonable opportunity to seek an appropriate protective order or other appropriate remedy to prevent disclosure of the Confidential Information. Vendor s obligations under this Section will continue in perpetuity. The provisions of this Section will be in addition to, and will not reduce, the protections of Meijer s information as contained in any separately executed confidentiality agreement or non-disclosure agreement between the parties. 9. Insurance Coverage. a. Vendor will have in effect when the products are shipped to Purchaser and will continue in full force and effect, at Vendor s own cost and expense, Product Liability insurance, including blanket contractual liability, in an amount not less than $3 Million per occurrence or claim and $4 Million in the aggregate. If the Vendor s insurance policy is a claims-made policy, it will include tail coverage for any claim against Purchaser arising after the claims period set forth in the policy for a minimum of three years. Vendor s insurance policy will not contain a deductible or self-insured retention that exceeds $10,000 without Purchaser s prior written consent. Vendor will satisfy any deductible or self-insured retention. b. Meijer, Inc., Meijer Distribution, Inc., Meijer Stores Limited Partnership and Meijer Great Lakes Limited Partnership will be named as additional insureds on an endorsement Purchase Order Terms and Conditions Pharmaceutical Product v Page 4

5 acceptable to Purchaser. The additional insured endorsement will extend coverage to contractual liability and products liability. A copy of the additional insured endorsement is required. Evidence of all insurance will be promptly ed to meijercerts@vanwykcorp.com. Insurance policies will afford primary coverage and contain a provision that coverage will not be canceled until Vendor has given at least ten days prior notice ed to meijercerts@wanwykcorp.com. All required insurance policies will be underwritten by an insurance carrier with an A.M. Best rating of A- or better. Purchaser may withhold payments due Vendor if Vendor fails to provide proof of insurance. c. Vendor s compliance with these insurance requirements will not relieve Vendor of its liabilities and obligations under the Indemnity section. 10. Indemnity. Vendor will (i) indemnify Purchaser, its affiliates, and their respective officers, directors, agents, representatives and employees ( Purchaser s Related Parties ) from any and all claims, actions, demands, liabilities, losses, costs, expenses, government-imposed fines or penalties, including attorneys fees and all other litigation costs such as expert witness fees; and (ii) defend, at Vendor s sole cost and expense, every claim, action or suit brought against Purchaser, whether groundless or otherwise, for damage or injury (including death) to any person, or for property damage, arising out of or related to: a. any defect or claim of defect in any product sold to Purchaser; b. Vendor s breach of the Contract Documents, including all warranties or representations; c. the seizure, detention or destruction of any Vendor product whether under the authority of any governmental authority, court order, or with the commercially reasonable approval of Purchaser or any subsequent purchaser; d. trademark, patent or copyright infringement or trade secret misappropriation related to the products; or e. Vendor s failure to comply with Section 6(c). f. But Vendor will not be liable for and will have no indemnity obligation for product defects, nonconformities or violations of law caused solely by the negligent act or omission or sole willful misconduct of Purchaser or Purchaser s Related Parties. g. Purchaser has the right to approve or select counsel for Vendor s defense of Purchaser against any and all claims, liability, and damages covered in this indemnity section. 11. Order as Offer or Acceptance. Purchaser s Order (for purposes of this section, the Order includes the other Contract Documents) may be construed as an offer or an acceptance of an offer. If an Order is construed as an offer, the offer expressly limits acceptance to the terms of the offer and constitutes notice of objection to any additional or different terms in the acceptance to preclude the inclusion of any different or additional items in any resulting contract. Acceptance will be manifested by Vendor s shipment of all or part of the Order. If Purchaser s Order is construed as an acceptance, acceptance is expressly conditioned on Vendor s assent to any additional or different terms contained in the Order. Assent will be manifested by Vendor s shipment of all or part of any Order. 12. Dispute Resolution. a. Any controversy or claim arising out of or relating to any Order will be determined only by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The dispute will be heard and determined by one arbitrator if the claim is Purchase Order Terms and Conditions Pharmaceutical Product v Page 5

6 less than $1 Million (exclusive of interest) and three arbitrators if the claim is $1 Million or more (exclusive of interest), at least one of whom will be an attorney. If there are three arbitrators, the parties agree that one arbitrator will be appointed by each of the parties and the third arbitrator will be appointed by agreement of the two party-appointed arbitrators. The parties agree that no arbitrator has the authority to: (i) award relief in excess of what this contract provides; (ii) award punitive damages or any other damages not measured by the prevailing party s actual damages; or (iii) order consolidation or class arbitration. Further, the arbitrator(s) must give effect to the limitations on either party s liability as set forth in this agreement or in any applicable tariff, law, or regulation. The place of arbitration will be in Kent County, Michigan, and the arbitrator(s) will construe the agreement in accordance with the laws of the State of Michigan, exclusive of its choice of law provisions. The arbitration hearing will take place within 120 days of the date of the initial or preliminary hearing or conference. Any judgment on the award rendered by the arbitrator(s) will be legally binding and entered in any court having proper jurisdiction. Neither party nor the arbitrator will disclose the existence or results of any arbitration or any evidence presented during the course of the arbitration, but if required by law, the parties are permitted to disclose this information to their insurers, auditors, the court or governmental agency. Before disclosure, the disclosing party will endeavor to provide prompt written notice to the other party. b. At Purchaser s option, this arbitration provision will not apply if a third party asserts a claim against either party in a court of law. In that event, Purchaser may elect to submit any related dispute between the parties to the litigation by joining the dispute to the third party claim litigation rather than arbitrating the claim as required by this section. This section does not prevent either party from seeking injunctive relief, including specific performance, against the other party in any court located in Kent County, Michigan, before the arbitration commencement or joining of a dispute with a third-party claim. 13. Waiver; Limitation of Actions. The U.N. Convention on the International Sale of Products does not apply to any transaction between Vendor and Purchaser. Purchaser s failure to insist upon or confirm Vendor s performance of any provision of this Order will not be considered Purchaser s waiver of that provision. Any action by Vendor against Purchaser for breach of any Contract Document must be commenced within one (1) year after the cause of action has accrued. 14. Invoicing. Vendor will invoice Purchaser for the products no later than one (1) year after the products have been received by Purchaser; if Vendor fails to do so, Vendor will have waived any right to receive Purchaser s payment for the products. Vendor agrees that when it is qualified by Purchaser for EDI invoicing on the VICS 810 or UCS 880 standards, Vendor will no longer send any paper invoice to Purchaser. If Vendor does so, Vendor agrees that Purchaser may charge or debit Vendor US $75.00 for each paper invoice for products delivered to Purchaser s distribution facility and $25 for each paper invoice for products delivered directly to Purchaser s stores. 15. Compliance with Pharmaceutical Vendor Requirements and Reference Guide. Vendor acknowledges receipt of Purchaser s Pharmaceutical Vendor Requirements and Reference Guide (available at that also applies to the purchase of the products covered by Purchaser s Order. Vendor will comply with the Guide. Purchase Order Terms and Conditions Pharmaceutical Product v Page 6

7 16. Set-Off; Waiver; Claim Submission; Administrative Fee. All amounts payable to Vendor are subject to all claims and defenses of Purchaser, whether arising from Purchaser s purchase order or any other transaction. Purchaser may set-off and deduct against these amounts any indebtedness or other claim that Purchaser or its Related Parties may have against Vendor or its affiliated company under the Order or any other agreement between the parties. By posting on Purchaser s VendorNet ( or other commercially-reasonable means, Purchaser will provide Vendor with a debit memo or vendor charge back stating the set-off amount. Vendor will be considered to have accepted each debit memo or vendor charge back within 90 days after posting on the VendorNet or other receipt, unless Vendor notifies Purchaser in writing during that period why the deduction should not be made and provides documentation of the reason given. This notice and all other claims of Vendor against Purchaser will be submitted to Purchaser only through the Claims Management System ( CMS ) on Purchaser s VendorNet. Vendor agrees to pay Purchaser a $75 administrative fee for each claim submitted to Purchaser in any manner other than through the CMS. 17. No Open Account. Purchaser and Vendor agree that even though Purchaser may submit more than one Order to Vendor, each Order (and sale of products) will be a separate transaction and not create an open account. 18. Ultimate Consignee. Vendor will notify Purchaser if Purchaser is listed as an Ultimate Consignee on any documents related to the purchase, shipment, or importation of the products. Vendor will, at its expense as requested by Purchaser, provide copies of all documentation and records regarding the purchased products. 19. Records and Audits; Post-Audits. Vendor will retain all Purchaser records of purchases and payments for a period of two years after the end of the calendar year in which they occur. These records will be made available to Purchaser upon request and at no charge. Purchaser may, at its sole cost and expense and directly or through a third party auditor upon 30 days notice, undertake an audit of the records. This provision will survive termination of this agreement for a period of two years. With regard to post-audits, Purchaser will have two years from the end of the calendar year in which the transaction occurred to conduct a post-audit of that transaction. And Vendor will promptly pay (or at Purchaser s option, credit Purchaser with) any sum properly due as a result of any post-audit completed within that time period. 20. Controlling Order. The Contract Documents will be construed as supplemental to each other, but if there is a conflict or inconsistency between them, the controlling order to resolve the difference is: first, the Vendor Agreement, including any addendum if specified on Page 1 of that Agreement; second, these Terms and Conditions; third, the Trade Agreements; fourth, the business terms of Purchaser s Order; and fifth, Purchaser s Pharmaceutical Vendor Requirements and Reference Guide. 21. Foreign Corrupt Practices Act Compliance. Neither Vendor nor any of its subsidiaries nor, to Vendor s knowledge, any director, officer, agent, employee or other person associated with or acting on behalf of the Vendor or any of its subsidiaries has (i) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and its rules and regulations; (ii) used any corporate funds for any unlawful contribution, gift, entertainment, facilitation, or other unlawful expense relating to political activity or to influence official action, except that U.S. domestic vendors may have made facilitation payments to their non-u.s. Purchase Order Terms and Conditions Pharmaceutical Product v Page 7

8 suppliers if the payments were not unlawful under applicable foreign law; (iii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; or (iv) made any bribe, rebate, payoff, influence payment, facilitation payment, kickback, or other unlawful payment. 22. Termination for Insolvency. Purchaser may immediately terminate each Order without liability to Vendor if any of the following events (or any other similar or comparable events; each, a Vendor Insolvency ) occur: (i) Vendor s insolvency; (ii) Vendor s inability to promptly provide Purchaser with adequate and reasonable assurance of Vendor s financial capability to timely perform any of Vendor s obligations under any Order; (iii) Vendor s filing of a voluntary bankruptcy petition; (iv) the filing of an involuntary bankruptcy petition against Vendor; (v) appointment of a receiver or trustee for Vendor; or (vi) Vendor s signature on an assignment for the benefit of its creditors. Vendor will reimburse Purchaser for all costs incurred by Purchaser related to a Vendor Insolvency, including all attorneys fees and other professional fees. 23. Captions. The captions and headings are for convenience and reference only and have no legal force or effect. (end) Purchase Order Terms and Conditions Pharmaceutical Product v Page 8