RESOLUTION OF THE CLAIM; AND COOPERATE FULLY WITH PFIZER IN THE
MATTER. THIS DEFENSE, INDEMNITY AND PAYMENT FOR LEGAL FEES SHALL NOT APPLY TO
CLAIMS ALLEGING: MWI ALTERATION, NEGLIGENT HANDLING OR IMPROPER STORAGE OF THE
PRODUCTS; SALE OF OUTDATED PRODUCTS; SALE OR RECOMMENDATION OF THE PRODUCTS FOR
USES OR IN A MANNER NOT SET FORTH IN EITHER THE LABELING SUPPLIED BY PFIZER OR
AS OTHERWISE SPECIFIED BY PFIZER IN WRITING; OR SALE OF THE PRODUCTS AFTER
RECEIPT OF WRITTEN NOTICE FROM PFIZER THAT SUCH SALES SHOULD BE HALTED
(E)
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR SPECIAL, COLLATERAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN
CONNECTION WITH OR ARISING OUT OF THE PURCHASE, RESALE, OR USE OF
THE PRODUCTS. EXCEPT AS PROVIDED UNDER SUBPARAGRAPH 7(D), ABOVE, TOTAL DAMAGES
RECOVERABLE AGAINST PFIZER BY MWI SHALL BE EXCLUSIVELY LIMITED TO THE PURCHASE
PRICE OF THE PRODUCTS WITH RESPECT TO WHICH DAMAGES ARE CLAIMED;
(F)
FAILURE OF PFIZER TO MAKE OR OF MWI TO
TAKE, WHEN DUE, ANY DELIVERY (OR PORTION THEREOF) PURSUANT TO AN ORDER
HEREUNDER, IF OCCASIONED BY ANY CIRCUMSTANCE OR CONDITION BEYOND THE CONTROL OF
THE PARTY SO FAILING, SHALL NOT SUBJECT THE FAILING PARTY TO ANY LIABILITY TO
THE OTHER AND, AT THE OPTION OF EITHER PARTY, THAT ORDER OR PORTION THEREOF NOT
DELIVERED MAY BE CANCELED;
(G)
ACCEPTANCE OF MWI'S ORDER BY PFIZER IS
EXPRESSLY MADE CONDITIONAL UPON THE MWL'S ACCEPTANCE OF THE CONDITIONS OF SALE
AS SET FORTH HEREIN, AND THE PRICES, TERMS AND CONDITIONS OF THE PRICE LIST THEN
IN EFFECT, NOTWITHSTANDING ACKNOWLEDGMENT OR RECEIPT OF MWI'S PURCHASE ORDER
CONTAINING ADDITIONAL OR DIFFERENT PROVISIONS, OR CONFLICTING ORAL
REPRESENTATIONS BY ANY AGENT OF PFIZER.
(H)
ALL ORDERS TO MWI WILL RECEIVE FREE SHIPPING
REGARDLESS OF ORDER SIZE.
(I)
PAYMENT DUE DATE: /**/. PAYMENT
DISCOUNT: /**/.
8.
THIS AGREEMENT SHALL NOT BE BINDING
UPON PFIZER UNTIL IT IS APPROVED BY PFIZER AT ITS NEW YORK, NEW YORK
HEADQUARTERS.
9.
THIS AGREEMENT SHALL BE EFFECTIVE AS OF
THE DATE FIRST WRITTEN ABOVE AND SHALL CONTINUE IN FORCE (HEREINAFTER, THE
"CONTRACT TERM") UNTIL DECEMBER 31, 2009. EITHER PARTY MAY TERMINATE THIS
AGREEMENT PRIOR TO THE EXPIRATION DATE OF THE CONTRACT TERM (I) WITH OR WITHOUT
CAUSE, UPON THIRTY (30) DAYS WRITTEN NOTICE TO THE OTHER PARTY, OR
(II) IMMEDIATELY UPON WRITTEN NOTICE, IN THE EVENT OF A MATERIAL BREACH BY THE
OTHER PARTY. NOTWITHSTANDING THE ABOVE, PFIZER MAY TERMINATE THIS AGREEMENT AT
ANY TIME ON 15 DAYS WRITTEN NOTICE TO MWI IN THE EVENT THAT PFIZER DETERMINES,
IN ITS SOLE DISCRETION, THAT MWI HAS FAILED TO COMPLY WITH ONE OR MORE OF THE
TERMS AND CONDITIONS SET FORTH IN PARAGRAPH 3 ABOVE. IN ADDITION, AT ITS
ELECTION, PFIZER MAY TERMINATE THIS AGREEMENT, UPON THIRTY (30) DAYS WRITTEN
NOTICE TO MWI, IN THE EVENT THAT MWI FAILS TO MEET THE LEVEL OF SALES IDENTIFIED
IN CHART B OF EXHIBIT D FOR TWO CONSECUTIVE MONTHS.
10.
MWI AND PFIZER ACKNOWLEDGE THAT IN THE
PERFORMANCE OF THEIR DUTIES HEREUNDER