This Participation Agreement (this “Agreement”) is effective as of the date you register (the “Effective Date”), between Injector 360 LLC D/B/A Injector 360, a Florida limited liability company (“Company”), and the entity set forth below, for itself and on behalf of its Affiliates (“Participant”).
RECITALS
WHEREAS, Company is a “group purchasing organization” (“GPO”) that maintains agreements with vendors for purchasing products, equipment and services used by healthcare facilities as part of a group purchasing program; and
WHEREAS, the Parties desire to enable Participant to participate in Company’s group purchasing program and purchase products and services under GPO Vendor Contracts in accordance with the provisions of this Agreement (the “Program”).
NOW, THEREFORE, in consideration of the premises, agreements and covenants detailed in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereby agree as follows:
- Definitions.
The following terms have the following meanings:- “Affiliate” means, with respect to any specified entity, any entity that directly or indirectly controls, is controlled by or is under common control with such specified entity.
- “Event of Default” means with regard to Participant, the occurrence of any one or more of the following events (a) If Participant or any of its Affiliates becomes insolvent, unable to pay its debts as they become due, or makes any assignment of assets or business for the benefit of creditors, or if a trustee or receiver is appointed to administer or conduct its business or affairs, or if a voluntary or involuntary petition is filed by or against Participant in any court of bankruptcy; (b) If Participant or any of its Affiliates shall fail to comply with any provision of this Agreement, including, but not limited to, the prompt payment by Participant and each of its Affiliates of all monetary obligations connected with Products and Services purchased through the GPO Vendor Contracts, and all other obligations of Participant and each of its Affiliates under this Agreement; (c) If Participant or any of its Affiliates should breach any obligation Participant may have with Company, whether written or oral; (d) If Participant is an individual and becomes deceased; (e) If Participant is a business entity, and if Participant should sell or transfer at any one time or from time to time fifty-one percent (51%) of the total outstanding voting interest or equity interest of Participant to one or more persons or entities other than the owner or owners of Participant existing as of the date of this Agreement; (f) If Participant is a business entity, and if there should be a sale or transfer to a third party or distribution to Participant’s owners of substantially all of the assets of Participant; or (g) If Participant is a business entity, and if there should be a merger or consolidation of Participant into another business entity, or the merger or consolidation of another business entity into and with Participant.
- “GPO Vendor Contract(s)” means the purchasing agreements between Vendors and Company through which Products and Services are made available for purchase by Participants, in most cases from Company, but in some cases, directly from the applicable Vendor.
- “Eligibility Date” means the date that Participant and its Affiliates are able to start purchasing Products and Services under the GPO Vendor Contracts, as set forth in Company’s notification to Vendors and Participant, which is also the Effective Date, as set forth above.
- “Participants” means and refers to Participant and to those other entities that have entered into Participation Agreements with Company similar to this Agreement.
- “Party” or “Parties” means Company and Participant individually as Party or collectively as Parties.
- “Products and Services” means the products, pharmaceuticals, including but not limited to, those compounded or distributed as manufactured by Vendors; equipment, supplies, software, and other goods used in the practice of medicine, and services available pursuant to GPO Vendor Contracts.
- “Vendor(s)” means the pharmacies, supplier(s) or distributors(s) of Products and Services pursuant to GPO Vendor Contracts.
- Purchase of Products and Services; Affiliates.
- Authorization. Participant, on behalf of itself and its Affiliates, hereby authorizes Company, as agent, to: (a) negotiate the terms of and enter into GPO Vendor Contracts, and to cancel or modify any GPO Vendor Contracts, as it deems necessary, advisable or appropriate; (b) receive rebates or discounted pricing from Vendors based on purchases pursuant to GPO Vendor Contracts by Participant and its Affiliates through Company or made directly from the Vendors; and (c) in accordance with applicable laws, receive from Vendors or Participant data relating to purchases of Products and Services pursuant to GPO Vendor Contracts, which could include for each Participant, without limitation the specific items purchased, amounts invoiced and dates ordered and delivered or backordered, provided that no patient specific information would be included.
- Eligibility Date. On the Eligibility Date, Participant and its Affiliates shall be eligible to purchase Products and Services under GPO Vendor Contracts in accordance with the terms and conditions of this Agreement.
- Purchase of Products and Services. In addition to Participant, the Affiliates, as third-party beneficiaries of this Agreement, shall have access to the Program and may purchase Products and Services pursuant to GPO Vendor Contracts. Each Affiliate that makes a purchase thereunder shall be subject to all terms and conditions of this Agreement. Participant shall be responsible for its Affiliates’ compliance with this Agreement and all applicable GPO Vendor Contracts, including compliance with performance and payment obligations therein. To the extent consistent with best medical practice procedures and the best interests of the patients, Participant further agrees to purchase and/or use the Products and Services in such ways and amounts as will justify the continuation of this Agreement, which judgment shall be in the sole discretion of Company. Nothing contained in the foregoing sentence should be construed to require or encourage Participant to prescribe medical treatment or pharmaceuticals for the sole purpose of complying with such sentence, if such prescriptions are not medically indicated. Notwithstanding the foregoing, Participant’s participation in any GPO Vendor Contract arranged by Company is voluntary. Participant is at liberty to purchase the Products and Services from any vendor, regardless of whether Company has arranged the Program with such vendor, so long as Participant is not in violation of Section 2.4. Participant acknowledges and agrees that participation guidelines may be established and changed by Company from time to time as to what degree of participation is expected of Participant under the provisions of this Section 2.3. Participant agrees to comply with such guidelines, the same as if they were set out in this Agreement. Participant represents on a continuing basis that Participant is solvent as of the date of this Agreement and agrees that this representation of solvency shall be deemed to have been re-extended to Company each time Participant makes a purchase through a GPO Vendor Contract, unless Participant advises Company otherwise in writing. Participant covenants to notify Company immediately if and when this representation of solvency shall no longer be true. Participant acknowledges and agree that as of the Eligibility Date, Participant agreed to the “Injector 360 Terms and Conditions for Online Purchases” as a part of receiving access to Company’s website portal (the “Website”) through which Participant may purchase the Products and Services (the “Online Purchase Terms”). The Online Purchase Terms contain additional terms pertaining to Participant’s purchases of the Products and Services, together with any other terms which pertain to Participant’s usage of the Website and/or purchase of the Products and Services, including the SaaS Terms, Website Terms of Use, Privacy Policy; and any other agreements between Company and Participant (collectively, the “Additional Terms”), all of which are intended to supplement, rather than replace the provisions of this Agreement. To the extent there is a conflict between any of the provisions of the Additional Terms and of this Agreement, the terms most favorable to Company, as determined by Company in its sole discretion, shall govern.
- No Separate Agreements. Neither Participant nor its Affiliates shall (directly or through third parties) negotiate amendments or modifications to GPO Vendor Contracts or enter into a separate agreement with a Vendor for the Products and Services sold by that Vendor pursuant to a GPO Vendor Contract without the prior written approval of Company. Accordingly, this obligation and any other obligations in this Agreement, which by their nature are intended to survive the termination of this Agreement shall survive the termination of this Agreement. During the term of this Agreement, under no circumstance shall Participant circumvent this Agreement by doing or causing any of the following to be done, either directly or indirectly: (i) purchasing any Product or Service available under this Agreement from a Vendor with whom a GPO Vendor Contract exists without going through the Website and without Company’s approval; or (ii) purchasing a Product or Service available on the Website from the Vendor or any third party at any price without reporting the sale of any such Products or to Company, without going through the Website and without Company’s approval. Nothing contained in this Agreement shall preclude Participant and its Affiliates from participating in other GPOs, so long as they primarily purchase the Goods and Services provided by Company through the Program as posted on the Website. The list of such Products and Services may be updated by Company from time to time, by posting them on the Website, whereupon the update will become effective. If such update affects Participant adversely because Participant is already sourcing the newly added Product or Service from another GPO, Participant may so notify Company and it will not be subject to such update.
- Affiliates Acquired by Participant. If Participant or any of its Affiliates acquires any new facility, or enters into an agreement to manage the supply chain function of an independent healthcare provider, and in the event Participant seeks to include any such Affiliate or provider as an Affiliate hereunder, then Participant shall advise Company in writing of such event. Upon the effective date of such notice, each new Affiliate shall have access to the Program as an Affiliate hereunder.
- Online Purchases. It is anticipated that Participants will purchase the Products and Services through the Website. In many cases, Company will collect the payments for such purchases on behalf of Vendor and remit the price charged by Vendor to Vendor. Participant acknowledges and agrees that in lieu of charging all or a portion of an administrative fee to Vendor, Company may elect to receive a lower price from the Vendor than what Company charges to Participants for the purchases of Products and Services. Any such profit margin received by Company for the purchases of Products and Services shall go toward compensating Company for its services as a group purchasing organization to Vendor and Participants. Accordingly, after remitting to Vendor its invoiced charges on the purchases of Products and Services, Company will retain the balance of funds, if any, paid by the Participants. Company shall not be required to disclose the prices it pays to Vendors for the purchase of Products and Services. Similarly, any administrative fees or rebates paid to Company by the Vendors with respect to purchases of Products and Services by Participant are the sole and exclusive property of Company, without Company having any obligation to share them in whole or in part with Participant.
- Prescription Products. Company acts solely as a facilitating platform for Participants ordering prescription drugs and devices. Company does not stock, sell, handle, or dispense any prescription drugs or devices. All prescription items accessed through the platform are sold, verified, billed, and shipped exclusively by licensed wholesale distributors (Cobalt Medical Supply Inc. or Revance Therapeutics Inc.), who are the Merchants of Record. All practitioner licensure checks, prescription requirements, and state-specific regulatory obligations are performed solely by the licensed distributor.
All participants who purchase prescription products are solely responsible for ensuring that they hold the appropriate professional license and authority in their state, they comply with all prescribing, purchasing, administering, and record-keeping requirements, and their use of the products complies with applicable state scope-of-practice laws. Company does not determine eligibility, issue approvals, or influence prescription verification decisions. All information on this website is for educational and informational purposes only and does not constitute medical advice, diagnosis, or treatment. Practitioners must rely on their own clinical judgment and regulatory requirements, no medical advice is given. All orders are subject to the distributor’s independent verification of licensure and compliance with applicable federal and state regulations. All liability related to prescription products lies solely with the licensed distributor.
- Term and Termination.
- Term. This Agreement shall commence on the Effective Date and remain in effect until December 31, year after the Effective Date (“Initial Term”) and will renew automatically thereafter for periods of one (1) year each (each a “Renewal Term”). Either Party shall have the right to terminate this Agreement upon written notice to the other Party provided in accordance with Section 3.2. “Term” means collectively the Initial Term and all Renewal Terms.
- Termination or Suspension. Either Party may terminate this Agreement without cause or penalty upon ninety (90) days' prior written notice to the other Party. Upon the occurrence of an Event of Default, the non-defaulting Party shall notify the defaulting Party in writing of the specific nature of the default. If the defaulting Party does not cure the Event of Default within thirty (30) days of receiving a notice of it, the non-defaulting Party may immediately terminate this Agreement. Termination for breach shall not preclude the non-defaulting Party from pursuing any and all remedies available to it at law or equity. Upon termination of this Agreement, Participant or Affiliates will no longer be able to access or purchase under GPO Vendor Contracts. Upon the occurrence of an Event of Default by Participant, Company may at its option, immediately suspend Participants access to the Program and the Website until the underlying default is cured to the reasonable satisfaction of Company or until the cure period of the notice has expired without a cure at which time Company may terminate this Agreement. Alternatively, Company may, in its sole discretion, grant Participant additional time to cure while such suspension remains in effect.
- Effect of Termination. Except as otherwise provided herein, upon termination of this Agreement, Company shall have no further obligations hereunder, including, without limitation, any obligation to maintain, update or advise Participant or its Affiliates concerning any Products or Services. Participant shall remain obligated to pay for all purchases by it and the Affiliates made under such GPO Vendor Contracts.
Unless Participant notifies Company to the contrary at, or prior to the time this Agreement is terminated, effective as of the termination of this Agreement, Participant, on behalf of itself and its heirs, successors and assigns, does hereby FOREVER SETTLE, RELEASE, ACQUIT, AND FOREVER DISCHARGE COMPANY and its predecessors, agents, employees, officers, directors, shareholders, parent corporations, subsidiaries, affiliates, employees, attorneys, insurers, and representatives, as well as their respective successors and assigns (collectively, the “Released Parties”), of and from any and all claims and causes of action arising under or in connection with this Agreement and any other related agreements or any facts arising in connection with its participation in any of the programs of Company that were or could have been asserted against any of them. Participant agrees and promises not to sue Company or any of the other Released Parties for any claim that is released above. Upon termination of this Agreement, Participant will upon Company’s request reaffirm the release and covenant not to sue by a signed writing.
- Administrative Fees, Rebates and Participation Fees.
- Administrative Fees. Participant acknowledges, for itself and on behalf of its Affiliates, that: (a) Company will receive payment of fees for administrative and other services provided by Company from Vendors based on Products and Services purchased, licensed, or leased by Participant or its Affiliates (collectively “Administrative Fee(s)”) during the Term
- Rebates. It is anticipated that in addition to the administrative fees discussed in Section 4.1, Company may also receive rebates from certain Vendors based upon the amount of purchases made by Participant and other Participants in the Program. Under the terms of some GPO Vendor Contracts, it may be mandatory for Company to pay all of the such rebates to the Participants, but under the terms of other GPO Vendor Contracts, the payment of all or portion of such rebates to Participants is left to the discretion of Company. As to those GPO Vendor contracts in which the payment of rebates to the Participants is discretionary (the “Discretionary Rebates”), it is acknowledged and agreed that all or a portion of the Discretionary Rebates may be retained by Company as compensation for the services rendered by it to the Vendors and the Participants. It lies within the sole discretion of Company as to what portion of the Discretionary Rebates, if any, it will pay to Participant. No Discretionary Rebate or payment to Participant by Company shall be deemed earned, become the property of Participant or subject to any claim of Participant until it is actually paid to Participant by Company. It is the policy of Company to retain all of the Discretionary under normal circumstances. If Company pays a rebate to Participant, Participant is responsible for allocating any such rebate so received, as well as any rebate received directly from any Vendor, among its Affiliates (in proportion to their purchases of Products and Services giving rise to the rebate).
- Participation Fees. Participant will not be required to pay any participation fees during the Initial term, terms are defined in Section 3.1. From and after the expiration of the Initial Term, Company may charge Participant a reasonable periodic participation fee in any renewal term. Participant acknowledges and agrees that the amount of such participation fee may, at the sole discretion of Company, be changed from time to time and that it may vary with regard to what is charged to other Participants. If Participant does not agree to any such fee increase, it may terminate its participation in this Agreement as of the date any participation fee or participation fee increase is to take effect.
- Confidentiality.
Participant on behalf of itself and its Affiliates covenants and agrees that neither they, nor any of their respective directors, officers, employees or agents will use any information any of them receives or has received from Company in a way detrimental to the Company. Participant further covenants and agrees on behalf of itself and its Affiliates that the information will be kept confidential and shall not, without the prior written consent of Company, be disclosed in any manner whatsoever in whole or in part. For purposes of this Agreement, the information shall include all types of information or data disclosed, revealed or made available to Participant and its Affiliates, either orally or in writing, relative to the programs of Company which shall include, but not be limited to, trade secrets, financial statements, cost and expense data, sales figures, marketing data, administrative procedures, business policies and procedures, contracts and other similar information. Upon request by Company, Participant will sign a more detailed non-disclosure and confidentiality agreement from time to time, which shall be of a form and substance reasonably satisfactory to the Parties.
- Insurance and Hold Harmless.
Neither Company nor Participant and its Affiliates undertake any obligation in this Agreement with respect to products liability and Participant and its Affiliates shall carry primary general liability and products liability insurance coverage in an amount not less than $1,000,000 per occurrence (or a combination of primary coverage of at least $250,000, with the balance of such amount being covered by umbrella insurance), which policy or policies of insurance shall each name Company as an additional insured upon request of Company. Participant agrees on behalf of itself and its Affiliates that Participant and its Affiliates, shall jointly and severally protect, defend and hold the Company, and its successors, assigns, Affiliates, and each of its and their respective employees, servants, agents, attorneys, officers, directors, shareholders, members, managers, and owners (collectively, the “Indemnified Parties”) harmless from any and all damages, losses, liabilities and deficiencies (including, without limitation, reasonable attorneys' fees, court costs and other litigation expenses) incident to any claim, suit, action or proceeding, whether threatened or actual, arising out of or caused by any one or more of the following: (i) any use, sale, prescription, application or provision of one or more Products and Services by Participant or any of its Affiliates which is alleged by a claimant to be defective in any way (including, without limitation, in design, or in manufacture) or negligent in the manner in which one of the Products and Services was prescribed, applied or provided; (ii) any failure on the part of Participant or its Affiliates to duly perform and observe any term, provision, covenant, agreement or condition under this Agreement; or (iv) any negligent or more culpable act or omission (including recklessness or willful misconduct) by participant or its Affiliates, or any third party on behalf of Participant, or its Affiliates. The term “reasonable attorneys” fees,” as used above shall include any legal fees and related expenses incurred by any one or more of the Indemnified Parties in connection with any such indemnified matter, including without limitation, the fees of its Company counsel for services rendered in such matter, in addition to the fees of any special counsel obtained by such Indemnified Parties or provided by Participant or its Affiliates or their respective insurers to defend such Indemnified Parties in such matter. It is understood and acknowledged by the Parties that the term “Affiliates” as defined in this Agreement is not intended to include other Participants of Company.
- Limitation of Liability.
- Disclaimer. Company shall have no liability under any GPO Vendor Contract or with respect to any such purchases or any Products and Services made by Participant pursuant to any such GPO Vendor Contract. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, AS TO ANY PRODUCTS AND SERVICES SOLD BY ANY VENDOR; AND (b) PARTICIPANT AND EACH OF ITS AFFILIATES HEREBY EXPRESSLY RELEASES COMPANY FROM ANY AND ALL LIABILITY AND CLAIMS RELATING TO THE PRODUCTS AND SERVICES, AND ANY BREACH OR ALLEGED BREACH OF WARRANTY IN CONNECTION WITH THE PRODUCTS AND SERVICES.
- Limitation of Liability. In no event will Company, or any of its respective Affiliates, agents, officers, directors and employees be liable to Participant or any of its Affiliates for any indirect, punitive, special, incidental or consequential damage each may suffer in connection with or arising out of this Agreement (including loss of profits, use, data or other economic advantage to the extent not determined to be direct damages), however it arises, whether for breach of this Agreement, or in tort, even if they have been previously advised of the possibility of such damage.
- CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF COMPANY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE PRODUCTS OR SERVICES CONTEMPLATED HEREUNDER OR RELATED TO THE WEBSITE, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Time Limitation. No claim against Company of any kind under any circumstances will be filed more than one year after Participant, knows of, or in the exercise of reasonable care could know of, such claim or an act or omission of Company that would give rise to such claim.
- Compliance with Contract Terms, Laws and Policies.
Participant represents and warrants that it will, and will require each of its Affiliates to: (a) comply with all terms of this Agreement; (b) comply with all terms of GPO Vendor Contracts, including without limitation, payment terms; (c) comply with all applicable laws; (d) comply with Company policies communicated to Participants and Affiliates (as authorized under Section 25) and (e) execute separate agreements or acknowledgements as reasonably requested by Company or any particular Vendor evidencing Participant’s and/or such Affiliate’s participation in the Program and agreement to comply with the terms of this Agreement and the relevant GPO Vendor Contracts.
- Purchases Are for Own Use.
Each Participant represents and warrants that all Products and Services purchased will be for Participating Member's “own use,” within the meaning of the Nonprofit Institutions Act as interpreted by the U.S. Supreme Court in Abbott Laboratories v. Portland Retail Druggists Association Inc., 425 U.S. 1 (1976), and its successor line of cases. As such, Participant agrees that all Products and Services that Participant and its Affiliates purchase pursuant to GPO Vendor Contracts will be for use in the provision of healthcare services at Participant’s or its Affiliates’ locations, and not for resale or distribution to third parties, other than in the course of the provision of healthcare services by Participant or its Affiliates.
- Drug Enforcement Administration Registration Numbers & National Provider Information Number.
Participant hereby consents to Company providing Drug Enforcement Administration registration numbers (“DEA” numbers) or National Provider Information (NPI) numbers for Participant and all its Affiliates to Vendors, including authorized Company distributors; and to Company receiving such DEA numbers from Vendors, authorized Company distributors, and any other appropriate sources.
- Audit Rights.
Company shall have the right, at its expense, to review and audit the books, records, and documents (whether in hardcopy, electronic or other form) of Participant and/or its Affiliates, to (a) verify compliance with their obligations pursuant to this Agreement and (b) to obtain any data and information required for Company to fulfill its responsibilities under this Agreement and as to fulfill its responsibilities as a GPO for healthcare providers. The audit shall be conducted only after reasonable notice and during normal business hours at dates and times mutually agreed to in good faith by the Parties and may be conducted by Company’s employees or agents, or by a third-party auditor subject to the reasonable confidentiality policies and procedures. This right of audit may be exercised no more than one (1) time per year, except in the event of Participant or an Affiliate’s breach of this Agreement. Each of Participant and its Affiliates will cooperate with Company to provide the above-stated materials, and to provide any reasonable assistance to Company and its auditors necessary Company to carry out any audit as permitted herein.
- Notices.
All notices or other communications required or permitted under this Agreement shall be in writing and sent by express delivery service, with proof of delivery, electronic mail with receipt acknowledgement or delivered personally, with recipient’s written acknowledgment of receipt. Notices shall be deemed to have been given upon receipt. Neither Party shall refuse delivery of any notice hereunder. Notices shall be addressed to each Party as set forth below:Address for Notice:
If to Company:
Injector 360 LLC.
D/B/A Injector 360
10290 Atlantic Avenue, #480063
Delray Beach Florida 33448
Attention: Dr. Robyn Siperstein, Managing Member
(e-mail: [email protected])With a copy to:
Harry B. Ray
Ray Law Firm, PLLC
6150 Shallowford Rd,
Suite 105
Chattanooga, TN 37421
(E-Mail: [email protected])If to Participant: to the address provided to the Company when registering.
- Assignment.
This Agreement is dependent upon the personal qualifications of Participant and therefore Participant may not assign, subcontract, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder, without the Company’s prior written consent, and any attempt to so assign, subcontract, delegate or transfer without such consent shall be null and void.
- Entire Agreement and Waiver.
This Agreement sets forth the entire agreement and understanding of the Parties in respect of the transactions contemplated hereby, and supersedes all prior agreements, arrangements and understandings relating to the subject matter hereof. No Party has relied upon any oral or written statement, representation, warranty, covenant, condition, understanding or agreement made by any other Party or any representative, agent or employee thereof, except for those expressly set forth in this Agreement or in the exhibits hereto. All rights and remedies conferred under this Agreement or by any other instrument or law shall be cumulative and may be exercised singularly or concurrently. The failure by Company to enforce any term shall not be deemed to be a waiver of future enforcement of that or any other term of this Agreement.
- Governing Law; Consent to Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to its conflict of laws and principles. Subject to Sections 16 and 17, Participant and Company each expressly submits and consents to the jurisdiction of the federal or state courts in Palm Beach County, Florida with respect to any legal proceedings arising out of or relating to this Agreement and each Party waives any objection that it may have based upon lack of personal jurisdiction, improper venue or forum non conveniens.
- Waiver of Jury Trial.
EACH PARTY HEREBY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES; THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT OF ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY REPRESENTS AND CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF LITIGATION. EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER. EACH PARTY MAKES THIS WAIVER VOLUNTARILY. EACH PARTY REPRESENTS THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16.
- Mandatory Binding Arbitration And Class Action Waiver. Please Read This Section Carefully. It Affects Your Legal Rights, Including Your Right To File A Lawsuit In Court.
Claims relating to this Agreement or the Program will be resolved through final and binding arbitration, except as set forth below. The Parties agree that this Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.Initial Dispute Resolution: The Parties agree that most disputes can be resolved without resort to litigation. The Parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either Party initiating a lawsuit or arbitration. Accordingly, before initiating a lawsuit or arbitration, Participant agrees to contact Company to attempt to resolve the dispute in good faith.
Binding Arbitration and Class Action Waiver: If the Parties do not reach an agreed-upon solution within a period of thirty (30) days from the time the informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either Party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to the Agreement (including its formation, performance and breach), the Parties’ relationship with each other and/or Participant’s use of the Website shall be finally settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions.
Filing a Demand. To start an arbitration, a Party must do the following: (a) Write a Demand for Arbitration (“Demand”) that (i) briefly explains the dispute, (ii) lists Parties’ names and addresses, (iii) specify the amount of money in dispute, if applicable, (iv) identify the requested location for a hearing if an in-person hearing is requested, and (v) state what the Party wants in the dispute; (b) Send one copy of the Demand to the AAA, along with a copy of these Terms and the filing fee required by the AAA; and (c) Send one copy of the Demand for Arbitration to the other Party.
The Parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. All arbitration shall be initiated in Palm Beach County, Florida, United States, and the Parties agree to submit to the personal jurisdiction of any federal or state court in Palm Beach County, Florida, United States, in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in state or federal court located in Palm Beach County,, Florida, United States. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the Parties and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration will be held in Palm Beach County, Florida, United States. If any court or arbitrator determines that this arbitration provision is void or unenforceable for any reason or that the Parties are not bound to arbitrate their claims, then the disputes, claims or controversies deemed not to be subject to arbitration must be litigated in state or federal court located in Palm Beach County, Florida, United States.
Participant has the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of its decision to opt out to [email protected] with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within the later of 30 days of Participant’s first use of the Website or within 30 days of changes to this section being announced on the Website. Otherwise, Participant shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If Participant opts out of these arbitration provisions, Company also will not be bound by them. Company will provide thirty (30) days’ notice of any changes to this section by posting on the Website. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this paragraph regarding changes to this section 17 is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Services.
Exception: Litigation of Intellectual Property Claims: Notwithstanding the foregoing, disputes, claims, or controversies concerning (1) either party’s patents, copyrights, moral rights, trademarks, and trade secrets or (2) claims of piracy or unauthorized use of the Website (collectively, “IP Claims”) shall not be subject to arbitration.
- Force Majeure.
Neither Party shall be liable to the other Party for any delay or failure to perform its obligations hereunder if such delay or failure results from causes beyond its reasonable control. Such causes may include, without limitation, acts of God, fires or other catastrophes, telecommunications failures, equipment failures, power failures, labor disputes, strikes, delays in transportation, pandemics or epidemics (to the extent they impact upon such Party’s ability to perform) riots, war, governmental regulations, non-performance by suppliers and Vendors, or problems experienced by a Party as a result of its own or any third party’s computer software or hardware failures (an “Event of Force Majeure”). Each Party shall give the other Party prompt notice of any Event of Force Majeure that may cause delay or non-performance of its obligations hereunder.
- Amendments.
Participant acknowledges that changes to this Agreement may be desired from time to time. In the event Company desires to make changes to this Agreement, it will post a notice on the Website that this Agreement has been revised, together with the revised version of this Agreement, or it may send a notice to all of the Participants to that effect with a copy of the revised version of this Agreement. After such notice has been provided, such revised version of this Agreement shall immediately take effect. Participant shall be deemed to accept and agree to such revised version of this Agreement if Participant makes any further purchases of Products or Services through the Program, without the necessity of the signature of Participant on any amending document. Notwithstanding the foregoing, the notice requirement set forth in Section 17, entitled Mandatory Arbitration and Class Action Waiver, shall prevail as to changes pertaining to such Section. Otherwise, no prior notice is required as to any changes pertaining to the rest of this Agreement. If Participant does not wish to accept any such revised version of this Agreement, Participant may, as its sole remedy, terminate this Agreement and its right to participate in the Program by so notifying Company.
- Severability.
If any part of this Agreement is determined to be invalid, illegal or unenforceable by any valid act of Congress or act of any state legislature or by any regulation duly promulgated by the United States or a state acting in accordance with the law, or declared null and void by any court of competent jurisdiction, then such part will be reformed, if possible, to conform to the law and, in any event, the remaining parts of this Agreement shall be fully effective and operative insofar as reasonably possible.
- No Conflict of Interest.
Participant acknowledges and agrees that either Company or any one or more of its employees, principals or members may be an employee, investor or owner of any other current or future Participants in the Program and may itself be a Participant in the Program. Participant hereby consents to any and all of such activities and involvements and agrees that none of such shall constitute a conflict of interest of violation of this Agreement.
- Vendor Reporting and Information.
Participant acknowledges and agrees that each Vendor who participates in the Program will make periodic reports to Company as to the purchases made by Participant and other Participants from such Vendor as part of the Program. Any purchases by Participant from any Vendor or provider who participates in the Program of the same types of Products and Services offered under the Program shall be included in the purchasing volume report and any rebates, if given, shall be paid thereon to Company regardless of whether they were provided under terms separate and apart from those specified the Program and regardless of whether such arrangement was in violation of Section 2.4. Participant agrees that any purchasing information gathered from Vendors regarding Participant’s participation in the Program may be sold or used by Company, one of its Affiliates or designees to or with third parties for commercial purposes, so long as such information is not specifically attributed to Participant in any reports given to third parties and so long as such information does disclose personal health information. Participant further agrees that during the Term of this Agreement, it will fully participate in any data warehouse project developed by Company or its designee in the future which accumulates and analyzes the expenses and revenues of the Participants. Such data may also be sold or used by Company, one of its Affiliates or designees to or with third parties so long as it does not disclose individual patient information or identify the information specifically provided by Participant. Such information may also be used, in the sole discretion of Company, to create benchmarking reports to be provided to Participants and other third parties that would assist the recipient with the financial management of medical practices.
- Marketing Program.
As part of the Products and Services, Company may, but shall not be obligated to do so, provide various marketing and educational services and products to Participant to assist it in the promotion and management of its business. Company reserves the right to add, change and delete from the marketing and educational services and products it offers from time to time. Participant shall have no obligation to purchase any such marketing and educational services or products provided by Company.
- Participant Criteria.
Participant must meet the following criteria throughout the Term of this Agreement: (a) Participant or at least one of the principals of Participant must have a medical degree, be licensed to practice medicine in at least one state of the United States and be in good standing with the applicable medical boards or associations of such state. (b) Participant must regularly use or provide the Product and Services. (c) Participant must enjoy an excellent reputation as a healthcare provider among its patients and peers, as well as among its creditors. (c) Participant must demonstrate its credit worthiness to the satisfaction of Company, including, without limitation, any one of more of the following, as requested by Company: (i) showing consistent payment of invoices in accordance with their payment terms to Company and all Vendors; (ii) providing copies of statements of account from Vendors; (ii) providing financial statements; and (iii) granting access to credit checks. (d) Participant’s practice must be compatible with Company’s purchasing and marketing programs, based upon business ethics, marketing philosophies, purchases and quality of services provided, among other appropriate factors. - Other Duties and Responsibilities of Participant.
Participant agrees to the following additional duties and responsibilities: (a) Participant acknowledges and agrees that it is in the best interest of both Company and each of its Participants that Company be given the latitude to establish rules and guidelines from time to time pertaining to the usage and participation by its Participants of the Program and marketing program and other services to be provided by Company under this Agreement. It is agreed by Participant that Participant will abide by such rules and guidelines and Participant agrees to be bound thereby as if they were fully set forth in this Agreement. (b) Participant agrees to promptly pay Company and all Vendors, as applicable, on or before the due date all amounts due for purchases made under the Program by Participant and for any amounts due Company in connection with this Agreement or otherwise. Participant acknowledges and agrees that Company may withhold delivery of any service or payment in the event Participant has a past due balance with Company, in addition to the other remedies set forth in this Agreement and provided by law. Participant further agrees to provide and maintain current credit card information with Company. In the event any amount due Company is outstanding for more than ninety (90) days beyond its due date, Company is hereby authorized to charge such amount on such credit card, plus an additional 4% of such amount as a service charge. (c) Participant agrees to meet all requirements pertaining to the qualification of participation in Company, as contained in Section 24. Such requirements may be changed by Company from time to time. (d) Participant agrees not to take any action which would be hostile or contrary to the best interests of Company. (e) Participant acknowledges and agrees that this Agreement shall apply to all locations identified on the front page of this Agreement or otherwise designated to Company by Participant, as well as to all its Affiliates. Participant represents that it has management and/or ownership control over all locations and Affiliates of Participant to be included under the terms of this Agreement. - Terminology.
When appropriate, any use of the singular in this Agreement shall be deemed to include the plural and vice versa and any use of the neuter gender shall be deemed to include the feminine and masculine. Unless otherwise indicated by surrounding text, all section references in this Agreement, refer to sections within this Agreement. All section titles are for convenient reference only and are not intended to have substantive content regarding the interpretation of this Agreement. - Authority to Enter Agreement.
Participant represents and warrants that it has the requisite authority to enter into this Agreement. - Consent to Agreement.
BY CLICKING THE BOX ON THE SITE WHICH READS IN PART “I agree to the terms of the Participation Agreement, the Terms and Condition for Online Sales, Use SaaS Terms, Website Terms of Use, and the Privacy Policy… the same as if I signed each of them manually”, PARTICIPANT AFFIRMS THAT PARTICIPANT HAS THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AS WELL AS THE ADDITIONAL TERMS (AS DEFINED ABOVE). UPON ACCPETANCE OF PARTICIPANT’S REGISTRATION, COMPANY CONFIRMS THAT IT HAS ENTERED INTO THIS AGREEMENT WITH PARTICIPANT AND HAS ADMITTED PARTICIPANT INTO THE PROGRAM.
