This Group Purchasing Organization Membership Agreement (“Agreement”) is made and entered into as of the date set forth below (“Effective Date”) by and between Buygility Holding, LLC, an Arkansas limited liability company (“Buygility Holding”) including it’s subsidiaries Buygility, LLC and GPOnet, LLC, and the undersigned party (“Member”).
NOW THEREFORE, in consideration of the mutual promises herein contained, the parties hereto agree as follows:
Member hereby appoints Buygility Holding s a non-exclusive group purchasing organization (“GPO”) purchasing agent of Member. Buygility Holding will make available to Member the opportunity to acquire goods and services at discounted rates through group purchasing arrangements negotiated by Buygility Holding with Vendors. Buygility Holding will not have the authority to purchase any goods or services on behalf of Member or to bind Member to purchase any goods or services from any third party. Member will purchase goods and services directly from the applicable Vendor and Member will be solely responsible for payments and compliance with all other terms, conditions, and pricing of the applicable Vendor’s contract. Member hereby allows Buygility Holding to aggregate and contract for purchasing on behalf of Member.
2. Disclaimer of Warranties.
BUYGILITY HOLDING MAKES NO WARRANTIES IN CONNECTION WITH GOODS OR SERVICES TO BE PROVIDED BY A VENDOR HEREUNDER, WHETHER EXPRESS OR IMPLIED, AND INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYGILITY HOLDING MAKES NO GUARANTEES AS TO SATISFACTION WITH ANY VENDOR. IN NO EVENT SHALL BUYGILITY HOLDING, ITS SUBSIDIARIES AND AFFILIATES, AND THEIR DIRECTORS, OFFICERS, MEMBERS, AGENTS AND EMPLOYEES, BE LIABLE FOR ANY DAMAGES, LOSSES OR EXPENSES INCURRED, INCLUDING WITHOUT LIMITATTION ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM BUYGILITY HOLDING’S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER, WHETHER DUE TO BREACH OR CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE. This provision will survive the termination of this Agreement.
3. Own Use.
Member will use all products purchased from Vendors solely for Member’s own use and/or patients and Member will not resell or transfer any product purchased from any Vendor to any other person or entity without specific, written permission from Buygility Holding and the applicable Vendor.
4. Fees and Disclosure Obligations.
4.1 Vendor Fees. Member acknowledges and agrees that Buygility Holding may (i) receive fees of varying amounts, either directly or indirectly, from Vendors based on member purchases (including purchases by Member) under Buygility Holding group purchasing arrangements; and (ii) furnish certain administrative and promotional services to such Vendors. In accordance with the provisions of the federal Anti-Kickback Statute GPO safe harbor, 42 C.F.R. § 1001.952(j), Buygility Holding agrees that, unless it provides Member with prior written notice, any fees paid by a Vendor to Buygility Holding shall not exceed three percent (3%) of the purchase price of the goods or services purchased from such Vendor. If the fee to be paid by a Vendor is greater than three percent (3%), Buygility Holding shall send a written notice to Member identifying the amount of the fee and the Vendor prior to offering Member access to the group purchasing arrangement. Said notice shall become a part of this Agreement.
4.2 Disclosure of Vendor Fees. Buygility Holding will disclose annually, and upon reasonable request by Member, the amounts received from each Vendor with respect to purchases made by or on behalf of Member. Buygility Holding and Member each agree that, upon request, they will disclose Vendor fees to the Secretary of the Department of Health and Human Services (“HHS”) or other state health care regulatory agency if required by law. This section shall survive termination of this Agreement.
4.3 Member Disclosure of Discounts. Member acknowledges and agrees that it may be required to disclose any discounts, rebates, incentives, or other remuneration that it receives through this Agreement or other GPO arrangements to federal or state health care
programs or other payers. To the extent required by law, Member agrees to properly disclose and reflect any such discounts on costs claimed or charges made to Medicare and Medicaid and to provide such information upon request to the Secretary of HHS or other state health care regulatory agencies. This section shall survive termination of this Agreement
4.4 Authorization to Sign. Member appoints Buygility Holding as its agent to act on its behalf solely for the limited purpose of the execution of all contract access forms deemed reasonably necessary to inform any manufacturers, distributors, or vendors of the Member’s participation in a Buygility Holding program. Said authorization does not extend to the execution of bilateral commitments which are beyond the limited purpose described above. This authorization to sign shall be effective as of the signature date and shall remain in full force and effect for the length of the agreement or until the undersigned Member delivers written notice to Buygility
Holding of its revocation.
5. Term and Termination.
5.1 Term. The term of this Agreement will commence on the Effective Date and shall remain in effect until terminated by either party, with or without cause, upon sixty (60) days’ prior written notice to the other party.
Member shall hold all confidential and proprietary information of Buygility Holding, including but not limited to the terms of this Agreement and the proposed and actual Vendor prices and terms and conditions, in confidence and shall not disclose such information to any person or entity without the prior written consent of Buygility Holding; provided, however, that the foregoing shall not apply to information which (i) is generally available to the public, (ii) becomes available on a non-confidential basis from a source other than Buygility Holding which source was not itself bound by a confidentiality agreement, or (iii) is required to be disclosed by law or pursuant to court order. Buygility Holding shall be entitled to injunctive relief to prevent a breach or threatened breach of this section, in addition to all other remedies that may be available. Member shall use Buygility Holding’s confidential and proprietary information solely for Member’s performance of this Agreement, and upon the termination of this Agreement, and at the request of Buygility Holding, will return all materials containing any portion of the confidential and proprietary information. This section shall survive termination or suspension of this Agreement.
7.1 Compliance with Laws. Buygility Holding and Member each agree that they will comply with all applicable state and federal laws, rules and regulations in connection with the performance of their respective duties and obligations under this Agreement.
7.2 Governing Law. This Agreement will be construed and interpreted solely in accordance with the laws of the state of Arkansas and the United States of America, without regard to its conflicts of laws principles.
7.3 Notices. Any notice required or permitted to be given pursuant to the terms and provisions hereof shall be in writing, postage and delivery charges pre-paid, and shall be sent by facsimile (with a positive confirmation report), hand delivery, overnight mail service, first-class mail or certified mail, return receipt requested, to the parties at the party’s address listed on the signature page.
Any party may change the address to which notices are to be sent by notice given in accordance with the provisions of this section. Notices hereunder shall be deemed to have been given and shall be effective upon actual receipt by the other party.
7.4 Relationship of the Parties. This Agreement does not create any franchise, joint venture, partnership or other similar legal relationship between Buygility Holding and the Member. No party has the authority to bind or act on behalf of the other party except as otherwise specifically stated herein. There are no third party beneficiaries of or to this Agreement.
7.5 Assignment. Neither party hereto may assign this Agreement or assign, transfer, or delegate rights or obligations under this Agreement, without the other party’s prior written consent, except that Buygility Holding may assign this Agreement to an affiliate or an acquirer of substantially all of the assets or equity of Buygility Holding without the consent of Member.
7.6 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.
7.7 Entire Agreement/Amendment. This Agreement, including any exhibits and attachments hereto, constitute the entire understanding and agreement between Member and Buygility Holding concerning the subject matter hereof, and supersede all prior negotiations, agreements and understanding among the parties, whether oral or in writing, concerning the subject matter hereof. No term or provision of this Agreement may be changed, waived, amended, or terminated except by a written agreement signed by both parties.