Consignment Agreement {AGR-304}

CONSIGNMENT AGREEMENT This Agreement is made between (?Supplier?) and (retailer) on this day of , 20 . 1. Delivery The Supplier shall, upon request made by the retailer, deliver to the retailer on consignment, at its premises, those products set forth in the attached schedule A, as the same is amended from time to time (collectively, the ?Products on Consignment?). 2. Prices The prices for the Products on Consignment shall be set forth in the attached schedule B. 3. Consignment The Retailer shall store the Products on Consignment at its premises so as to be at all times segregated from all of the Retailer?s inventory (the ?Exclusive Storage?) and shall clearly indicate that the Products on Consignment are the property of the Supplier. It is the responsibility of Supplier?s Sales Representative to ensure that the product is up to date with current specifications, to rotate consigned inventory, to return to Supplier at Supplier?s sole expense any non-moving or short dated inventory, and that the products are still in a saleable condition. The product will therefore be checked on a monthly basis. Supplier reserves the right to remove Products on Consignment from the Retailer upon reasonable notice in the event that the Products are needed elsewhere on an emergency basis. 4. Inventory of Products on Consignment The Retailer shall have one of its representatives and allow one representative of the Supplier to take, once a month an inventory of the Products on Consignment in order to determine the Products on Consignment, which have been used, damaged, destroyed or otherwise removed from the Exclusive Storage. 5. Purchase When used or otherwise removed from the Exclusive Storage, the Products on Consignment, shall be deemed to have been purchased by the Retailer. 6. Invoicing and Payment Based upon the inventory, the Retailer shall, within 20 days, forward a purchase order to the Supplier for the Products on Consignment deemed purchased by the Retailer and the Supplier shall invoice the Retailer for such Products on Consignment. Payment by the Retailer shall be made within 60 days of receipt by it of each such invoice. 7. Return Products on Consignment may return at Retailer?s request. 8. Title Title to and property of the Products on Consignment shall remain with the Supplier until such time as the Products on Consignment are deemed purchased by the Retailer. 9. Supplier?s Representations and Warranties The Supplier represents and warrants to the Retailer as follows: a.) all Products on Consignment shall be new and unused and shall have received all applicable approvals; b.) the Supplier will comply with all federal, state and local laws, regulations and orders applicable to the manufacture, sale, packaging, labeling and delivery of the Products on Consignment; c.) title to all of the Products on Consignment shall pass to the Retailer in accordance with the terms hereof free and clear of all liens, claims and encumbrances whatsoever; and d.) there is no proceeding in progress or pending or threatened against, related to or affecting the Supplier in connection with the Products on Consignment which might be expected to have a materially adverse effect on the Products on Consignment. 10. Remedy of Breach of Representations and Warranties Where the Retailer notifies the Supplier that it is in breach of any of its representations or warranties, the Supplier shall use its best efforts, at no expense to the Retailer, to remedy such breach as quickly as possible but not longer than 10 days following such notification, including providing additional or alternate Products on Consignment to the Retailer to ensure that the Retailer?s operations are not disrupted by such breach. Where the Supplier is unable to correct the breach within the said 10 day period, the Retailer, without restricting its recourse including the right to claim damages and legal fees, shall be entitled to return any or all affected Products on Consignment and to receive a full refund for all amounts paid. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY FOR SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT. 11. Nature of Warranties The representations and warranties are in addition to any other warranties or service guarantees given by the Supplier to the Retailer, including Supplier?s standard product warranty, and are separate and discrete from any other warranties specified in the warranty documentation relating to the Products on Consignment. Seller does not warrant either a good effect or against any ill effect following the use of Products on Consignment. THERE ARE NO WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 12. Insurance Upon request by the Retailer, the Supplier will furnish the Retailer with a certificate of insurance demonstrating a liability insurance policy covering public liability, bodily injury and property damage, product liability and contractual liability in amounts satisfactory to, and with a company reasonably acceptable to the Retailer. Such certificate shall state that the policies will not be cancelled or allowed to expire without 30 days prior written notice to the Retailer. 13. Term This Agreement shall commence on the day of , 20 and continue for a period of twelve (12) months, with the option to extend for additional twelve (12) month period upon mutual acceptance. 14. Termination The Supplier may terminate this Agreement at any time by giving 30 days prior written notice in the event that the Retailer fails to fulfill any of its obligations hereunder. Upon termination by the Supplier, the Retailer shall deliver, at the Retailer?s sole expense, in good condition, to the address and in the manner designated by the Supplier, all of the Products on Consignment then in its possession, which have not been deemed to have been purchased by the Retailer pursuant to this Agreement. The Retailer may terminate the agreement at any time by giving 30 days prior written notice. Upon termination by the Retailer, the Retailer shall deliver at the Supplier?s sole expense, in good condition, to the address and in the manner designated by the Supplier, all of the Products on Consignment then in its possession, which have not been deemed to have been purchased by the Retailer pursuant to this Agreement. 15. Governing Law This Agreement shall be governed by and interpreted in accordance with the laws of the State of (Insert state name) applicable therein. 16. Notice Any notice or other documents to be given or sent to the other party hereunder shall be effectively given or sent, if delivered or sent by the prepaid registered mail, addressed to the party for which it is intended at its address or to such other address for such party as may be specified from time to time by written notice given by such party to the other. Notices shall be deemed given when delivered or transmitted by facsimile or, if mailed, within five business days after being deposited in the mail. 17. Medical Alerts and Safety Notifications In the event of a medical alert issued by a recognized reporting agency involving any Products on Consignment at any time, the Supplier, at its expense, shall take all steps necessary to remedy the situation and communicate the changes by registered mail and by facsimile. 18. Confidentiality Supplier and Retailer acknowledge that any information concerning the business and affairs the other party its agents, employees, clients and patients of which it becomes aware in the course performing its obligations under this Agreement, shall be treated as confidential. Each party agrees to take such measures to protect such information, as it would reasonably be expected to take to protect its own confidential information. This obligation of confidentiality does not apply to information that is or becomes publicly known without fault of the receiving party, or is or becomes lawfully available from another source; or was know to the receiving party before receipt from the disclosing party;