GROUP PURCHASING ORGANIZATION
PARTICIPATION AGREEMENT
This Group Purchasing Organization Participation Agreement (the “Agreement”) entered into by the undersigned (the “Participant”) and ABR Supply, LLC (herein as “Group Purchasing Organization” or “GPO”) on the date set forth below or date of electronic acceptance transmitted on-line.
1. Products and Services
a. Engagement of GPO. GPO has negotiated and entered into agreements with one or more vendors to provide products, goods and/or services (“Products and Services”) to entities such as the Participant. This pricing structure is being made available to the Participant at the price(s) negotiated by the GPO with the Vendors. However, nothing in this Agreement shall require Participant to purchase the Products and Services exclusively from Vendors who are part of the GPO Program to the exclusion of any other vendor of those Products and Services.
b. Relationship between Vendors and GPO. There are No Warranties, Returns, Refunds, Exchanges or Credits by GPO. The parties agree that the relationship between the Vendors and the GPO is that of independent contractors and that GPO does not warrant or guarantee any of the vendor’s products and services. Any and all warranties, returns, refunds, exchanges or credits are to be provided by Vendor to Participant and Participant to any end user or client, but not by GPO.
c. Use of Products and Services by Participant. Participant hereby agrees that all Products and Services purchased through the GPO are for the benefit of Participant and shall not be sold or resold the Participant to any retail establishment or to any other supplier, provider or user.
2. Termination
This Agreement shall commence on the date next to the Participant’s name below or as provided by data of acceptance through electronic transmission and continue for one (1) year and shall automatically renew for successive one (1) year terms unless earlier terminated upon thirty (30) days prior written notice. This Agreement may be terminated at any time by mutual agreement of the parties or at any time by either party upon thirty (30) days prior written notice to the other party.
3. Commissions, Contract Administration Fees (CAF)
GPO may receive remuneration from Vendors who participate in the GPO Program. This remuneration is exclusive to the GPO not the Participating member(s). The Participating member is encouraged to support the efforts of the GPO and should encourage participation through purchases of products, goods and services available from the GPO partners/vendors. No compensation of any kind will be paid by the GPO to any Participant(s). The GPO reserves the right to review the program from time to time as well as the spend of the Participant and make adjustments accordingly, if necessary. All invoices must be paid within the terms of the individual providers’ payment terms. The Participant(s) acknowledges that the intent of the GPO is to provide the Participant with competitive prices for products, goods and services as they are available through its vendors and partners.
4. Participant Responsibilities
a. Compliance with Law. Participant shall, and shall cause its directors, officers, employees and agents to, conduct themselves in connection with this Agreement, including, without limitation, the use of the Products and Services purchased pursuant hereto, in compliance with all applicable federal, state and local laws, rules and regulations and any directions provided by the Vendor. To the extent that Participant is required to report discounts that it receives to any governmental agency for the purpose of receiving reimbursement, Participant agrees that it shall accurately report any discount or reduction in the price of the Products and Services that it receives pursuant to the GPO Program.
b. Reports to GPO. If required by law, Participant agrees that upon reasonable request, it shall provide GPO with information and documentation requested by GPO regarding Participant’s purchases of the products and services obtained from vendors under the GPO Program.
c. Annual Fee. Participant will pay an annual fee of $500.00 to be a member of the GPO program in order to access the benefits of the GPO. The $500.00 annual fee is to be paid upon execution of this agreement and will be automatically renewed annually on or before December 31st of each calendar year in order to maintain membership in the GPO. GPO reserves the right to waive this fee if it is deemed necessary and also reserves the right to review the creditworthiness and financial capacity of any Participant, as necessary, to ensure that Participant(s) are capable of maintaining its membership as well as their ability to satisfy their financial obligations to GPO vendors/partners.
5. Indemnification.
PARTICIPANT HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS GPO and ABR SUPPLY, LLC AND ITS DIRECTORS, OFFICERS, MEMBERS, AGENTS, AFFILIATES, COUNSEL AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, LOSSES, DAMAGES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND REASONABLE ATTORNEY’S FEES), JUDGMENTS, ORDERS, CIVIL AND CRIMINAL PENALTIES, FORFEITURES AND ASSESSMENTS ARISING FROM OR RELATED TO (I) PARTICIPANT’S ACTS OR OMISSIONS OR (II) PARTICIPANT’S PARTICIPATION IN THE GPO PROGRAM AND/OR PARTICIPANT’S USE OR RESALE OF THE PRODUCTS OR SERVICES OFFERED PURSUANT TO THE GPO PROGRAM.
6. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INJURIES TO PERSONS OR TO PROPERTY OR LOSS OF PROFITS OR LOSS OF FUTURE BUSINESS OR REPUTATION, WHETHER BASED ON TORT OR BREACH OF CONTRACT OR OTHER BASIS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Force Majeure. Any delays or failures to deliver any items or shipments, if occasioned by fire, explosion, flood, earthquake, war, riots, insurrection, civil disturbance, accident, storm, interruption or delay in transportation, shortages or strikes due to labor disputes, inability to obtain materials or supplies, acts of government, or any act of God, or any other causes of like kind which are beyond the control of a party shall not subject such party to any liability to the other.
8. Non-Solicitation of Employees/Noncompetition. The parties agree that they shall not solicit, entice, persuade, or induce any vendor, manufacturer or supplier with a relationship with the GPO to the detriment of the GPO. This limitation shall apply during the term of this agreement and shall survive the termination of the Agreement for a period of three (3) years. Further, Participant acknowledges and agrees that the period of thirty-six (36) months following the termination or expiration of this Agreement for any reason will constitute the non-compete, non-solicit and non-divert period (the “Non-Interference Period”). During the term of this Agreement and during the Non-Interference Period, Participant will not engage in duties or provide services which are substantially similar to those provided under this Agreement, in any capacity, within the geographic regions where the parties to the Agreement operate. The parties agree that the limitations set forth are reasonable and enforceable under Tex. Bus. & Com. Code § 15.50(a) at the time this Agreement was executed. Participant further agrees that it shall not at any time during the term of this Agreement divert away or attempt to divert away any business from the GPO or ABR Supply, LLC. Additionally, Participant shall not, during the Non-Interference Period, solicit, divert away or attempt to divert away business from the GPO or ABR Supply, LLC and any related entities, either directly or indirectly. “Solicit” is defined as soliciting, inducing, attempting to induce, or assisting any other person, firm, entity, business or organization, whether direct or indirect, in any such solicitation, inducement or attempted inducement, in all cases regardless of whether the initial contact was by Participant, the target company, or any other person, firm, entity, business, or organization.
9. Confidentiality. All information, including without limitation pricing and volume information concerning products or services, material handling schemes or methodologies, electronic catalogs, reports, data processing configurations and approaches and related information proprietary to the disclosing party, shall be treated as confidential and will be used solely in connection with the work being performed under this Agreement and shall not be disclosed to third parties. The parties will provide such information to their employees on a need to know basis and shall reasonably ensure that their employees comply with this provision. The parties shall indemnify the other party for any and all damages (including but not limited to attorney fees) resulting from a breach of this confidentiality clause. This provision will be in effect during the term of the Agreement and will continue for a period of three (3) years after termination. These requirements shall not apply to information which: (a) is within the public domain; (b) is known to other parties at time of receipt; (c) is independently developed; (d) is ordered produced by a court of competent jurisdiction, or (e) is rightfully obtained from a third party without breaching the terms of this Agreement.
10. Dispute Resolution. The parties shall exercise their best efforts to resolve by negotiation any and all disputes, controversies or differences arising out of or relating to this Agreement. All disputes, controversies or differences between the parties that are not settled by negotiation shall be decided in accordance with the Commercial Rules of the American Arbitration Association and judgment will be entered on the award. The arbitrator will be bound by the express terms of this Agreement. The site of arbitration will be a mutually agreeable location in Texas and the arbitrator(s) will be bound by the applicable law of the State of Texas.
11. Miscellaneous.
a. Binding Agreement; Assignment. This Agreement shall be binding upon the heirs, successors assigns and legal representatives of the parties. It is provided that Participant may not assign any of its rights or delegate the performance of any of its duties or obligations hereunder without the prior written consent of the GPO. GPO may assign its rights or delegate the performance of its duties or obligations hereunder to an entity controlling or controlled by, or under common control with, GPO, or a successor in interest to GPO, without Participant’s consent.
b. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflicts of laws principles thereof.
c. Severability. To the extent that any provision herein, or part thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of the remaining provisions of this Agreement.
d. Entire Agreement; Amendment; Counterparts. This Agreement contains the entire understanding of the parties and supersedes all previous oral agreements and discussions with respect to the subject matter set forth herein. No modification of this Agreement shall be effective unless made in a written instrument executed by both parties, except that GPO may amend Vendor agreements without Participant’s consent. By electronic signature or transmission, this Agreement shall be deemed an original and by return acknowledgment by GPO shall constitute one and the same instrument.
832 Southway Circle, Suite 105; Fort Worth, Texas 76115-4008; Phone: (214) 932-9161