TERMS AND CONDITIONS OF MEMBERSHIP
The following Terms and Conditions (the "Terms") shall govern the contractual relationship ("Agreement") between OMNIA PARTNERS, LLC, a Delaware limited liability company ("OMNIA"), and the company registering as a member ("Member") (each a "Party" and collectively the "Parties"). WHEREAS, OMNIA and its subsidiaries and affiliates have developed various group purchasing programs (each, a "Program") and organized a group of industry companies as a group purchasing organization (the "GPOs"); and WHEREAS, OMNIA uses the aggregate purchasing potential of the GPOs to leverage more value-added services and favorable pricing from certain suppliers participating in the Program ("Suppliers"); and WHEREAS, Member desires to participate as a member in the Program and to utilize the services, skills and know-how of OMNIA and its other GPOs for the procurement of various goods and services provided by Suppliers (collectively, "Products/Services"). NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties agree as follows:
Membership. Member agrees to become a participating member and is hereby admitted as a member of the Program and engages OMNIA or its GPO partners as its group facilitator to negotiate standard terms, conditions and pricing as part of the agreements with its Suppliers (“OMNIA Supplier Agreements”). Member further agrees that OMNIA may provide access to agreements with its GPOs directly or indirectly by enrolling Member in another GPO’s purchasing program, including but not limited to Corporate United, Inc., Prime Advantage Corporation, Vizient Source, LLC, Provista, Inc. and other programs that OMNIA has access to from time to time whether through affiliation or as a channel partner. Member further acknowledges and agrees that by becoming a member of OMNIA, Member receives no ownership interest in equity, stock or any similar rights and interest in OMNIA or any of its affiliates and subsidiaries and the only rights that Member receives from OMNIA are limited to the matters expressly contained in this Agreement.
Term. These Terms shall continue until either Party terminates this Agreement in accordance with the terms hereof (the "Term"). Each Party may terminate this Agreement without cause upon not less than thirty (30) days’ advance written notice for any reason. If any purchase or purchase order between Member and a Supplier is executed prior to the termination of this Agreement and would otherwise extend beyond the end of the Term, the Term will be extended through the fulfillment of such purchase or purchase order.
Member-Supplier Joinder Agreements; Administrative Fees. Member will have the opportunity to purchase Products/Services from one or more Suppliers through the OMNIA Supplier Agreements, the general terms and conditions of which will have been negotiated and coordinated by OMNIA. Generally, no additional agreements shall be required for Member to make purchases from such Suppliers. On occasion, a Member may be required to enter into a direct agreement with a Supplier with respect to specific terms applicable to Member (such agreement, a “Member-Supplier Joinder Agreement”). Any such Member-Supplier Joinder Agreement must be approved by OMNIA and Member. Member acknowledges that Suppliers will pay OMNIA fees and other payments usually in the form of an "administrative fee", which may be based on a percentage of gross revenues received by the Supplier from the sale of Products/Services to Members.
Confidentiality. Both Parties understand that the business of the other is a highly competitive business and that each Party shall be provided or exposed to confidential supplier pricing, pricing terms, incentive information, contract terms, Program information and benefits, contact information for Suppliers and the names and contact information of other members, and other trade secret and proprietary information generally made available only to each other or in the case of OMNIA, to OMNIA Suppliers (all of which is hereafter referred to as the "Confidential Information"). Each Party agrees not to disclose or release such information to any third-party including, but not limited to, those who may be in competition, directly or indirectly, with either Party, during the Term of this Agreement or at any time after termination of this Agreement.
a. Confidential Information does not include information that: (i) becomes generally available to the public through no fault of the receiving Party; (ii) is, prior to its initial disclosure hereunder, in the possession of the receiving Party without any wrongdoing by the receiving Party, its employees or agents; (iii) is acquired by the receiving Party from any third-party without any restrictions on its use or disclosure (but with respect to Member, specifically excluding any OMNIA Supplier Agreements); (iv) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information; or (v) is disclosed by the Receiving Party pursuant to any law, court order or valid request by governmental agency.
b. Any Confidential Information disclosed pursuant to this Agreement shall be retained in confidence by the receiving Party and used only for the purpose of carrying out the intentions of this Agreement. Confidential Information may be disclosed only to employees or consultants of the receiving Party who have a need to know such Confidential Information for the purposes contemplated under this Agreement. Any consultant of the receiving Party who receives Confidential Information under this Agreement shall be similarly bound in writing to obligations of confidentiality no less restrictive than the confidentiality obligations set forth in this Agreement. The receiving Party shall be responsible for any breach of this Agreement by an employee or consultant of such receiving Party. The receiving Party shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, dissemination or publication of the Confidential Information.
c. If any law or an order of a court of competent jurisdiction requires that the receiving Party disclose the Confidential Information of the disclosing Party, such receiving Party shall give to the disclosing Party prompt written notice of the demand prior to furnishing the Confidential Information demanded, and, at the expense of the disclosing Party, shall obtain or cooperate with the disclosing Party in seeking reasonable arrangements to protect the confidential and proprietary nature of the Confidential Information.
d. All Confidential Information disclosed under this Agreement shall remain the exclusive property of the disclosing Party and nothing contained herein shall be construed as a grant, express or implied or by estoppel, of a transfer, assignment, license, lease of any right, title or interest in the Confidential Information.
e. No warranty or representation is made by either Party hereto with respect to the Confidential Information disclosed by such Party, including, without limitation, that any Confidential Information disclosed hereunder is true and correct, patentable or copyrightable, or that any such Confidential Information involves concepts or embodiments that are free of infringement of other third-party rights.
f. Upon the termination of this Agreement, or at any time within fourteen (14) days of receipt of a written request of the disclosing Party, the receiving Party shall (i) promptly return to the disclosing Party all Confidential Information disclosed in tangible form and copies thereof in the receiving Party’s possession; or (ii) promptly destroy such Confidential Information (including all copies thereof) in the receiving Party’s possession and certify their destruction to the disclosing Party. Notwithstanding the foregoing, backup tapes or other media made pursuant to automated archival processes in the ordinary course of business shall not be required to be destroyed, deleted or modified or returned, but shall remain subject to the confidentiality, non-disclosure, and non-use obligations of this Confidentiality Agreement until such retained Confidential Information is (i) returned or destroyed or (ii) ceases to be Confidential Information as defined herein.
g. In addition to all other remedies available at law or in equity, the disclosing Party shall be permitted to equitable relief, including specific performance, against the receiving Party and its representatives in the event of a breach or threatened breach by the receiving Party or its representatives of this Section 4.
h. The obligations under this Section 4 shall remain in place during the Term of this Agreement and for three (3) years from the date of termination of this Agreement; notwithstanding the foregoing, Confidential Information that constitutes trade secrets shall be kept confidential in perpetuity for so long as such Confidential Information is deemed a trade secret under applicable law.
i. The parties agree that the terms and conditions of Section 4 shall supersede and replace any confidentiality agreement, nondisclosure agreement or similar agreement between the parties that is in existence as of date hereof and the parties shall look to this agreement to govern the terms of confidentiality and the exchange and handling of Confidential Information between the parties.
Non-Contravention. In addition to the terms of Section 4, Member acknowledges and agrees that all specific pricing information, terms and conditions of OMNIA Supplier Agreements are confidential and proprietary to OMNIA. Member agrees that it will use such information for the sole purpose of evaluating its interest in participating in the purchase of specific Products/Services. Further, Member acknowledges and agrees that all of the documents, materials, data or information related to the Program shall remain the exclusive property of OMNIA and its licensors. Member agrees not to deliver or disclose any such materials, information or documents to any unaffiliated entity or third party without the prior written consent of OMNIA.
Member/Supplier Agreements. Member shall be responsible for the purchase and ordering of Products/Services and OMNIA shall not be liable in any fashion for any violation by Member of a OMNIA Supplier Agreement, a Member-Supplier Joinder Agreement or for the payment for any Products/Services. Payment for Products/Services and inspections and acceptance of Products/Services ordered by Member shall be the exclusive obligation of Member and Member shall make timely payments to the Supplier in accordance with the terms of the OMNIA Supplier Agreement and/or any Member-Supplier Joinder Agreement. Member acknowledges that delays in payment by Member could jeopardize any rebate, discount or other earned incentive payable to Member and other Members, if applicable. Payment of all earned incentives, enhancements, rebates, allowances and/or discounts are the sole responsibility of Suppliers. Disputes between Member and any Supplier shall be resolved in accordance with the law and venue rules of the State of purchase unless otherwise agreed to by Member and Supplier.
Disclaimers. OMNIA EXPRESSLY DISCLAIMS AND MEMBER HEREBY WAIVES ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES REGARDING THE PROGRAM, GPOS, PRODUCTS/SERVICES, SUPPLIERS, OMNIA SUPPLIER AGREEMENTS, AND MEMBER-SUPPLIER JOINDER AGREEMENTS AND MEMBER SHALL HAVE NO CLAIM AGAINST OMNIA FOR ANY PRODUCTS/SERVICES THAT MAY BE DAMAGED, DEFECTIVE, NOT IN ACCORDANCE WITH SPECIFICATIONS OR OTHERWISE NOT SUITABLE FOR INTENDED USE. OMNIA SHALL NOT BE LIABLE IN ANY WAY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR RELIANCE DAMAGES, EVEN IF OMNIA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, MEMBER ACKNOWLEDGES AND AGREES THAT OMNIA SHALL HAVE NO LIABILITY, AND MEMBER HEREBY RELEASES OMNIA AND ITS SUBSIDIARIES AND AFFILIATES, FOR ANY ACT OR OMISSION BY A SUPPLIER OR OTHER PARTY UNDER AN OMNIA SUPPLIER AGREEMENT OR MEMBER-SUPPLIER JOINDER AGREEMENT.
Compliance With Laws. Member shall procure Products/Services in accordance with and subject to the relevant federal, state and local statutes, ordinances, rules and regulations that govern Member’s procurement practices. Member hereby acknowledges and agrees that it is the intent of the Parties that all provisions of this Agreement and that Member’s participation in the Program shall comply with all applicable laws, including but limited to the requirements of 42 C.F.R. § 1001.952(h), as may be amended from time to time. Member further acknowledges and agrees that it is solely responsible for its compliance with all applicable “safe harbor” regulations, including but not limited to any and all obligations to fully and accurately report discounts and incentives.
Member is Non-Health Care Provider. Member represents and warrants that: (i) Member is not a Health Care Provider and is not purchasing Products/Services on behalf of a Health Care Provider; and (ii) Member does not own a hospital and is not purchasing Products/Services on behalf of a hospital. As used herein, Health Care Provider means a provider of health care goods and services or any entity enrolled in Medicare, any Medicare program or any federal healthcare program (as defined at 42 USC §1320a-7b(f)) as a provider of services or a provider or supplier of medical or health services.
Notices. All notices in connection with this Agreement shall be deemed given: (a) on the day they are deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested; (b) on the day they are sent by air express courier, charges prepaid; or (c) on the day of transmittal if sent by facsimile, email, modem or other means of mutually acceptable electronic communication (accompanied by verifiable documentation of transmission); and addressed as follows or to such other address as such Party may have fixed by like notice similarly given:
The address provided in the registration process
840 Crescent Centre Drive, Suite 600
Franklin, TN 37067
Attention: Executive Vice President, Sales
With a copy to:
(same as address above)
Attn: General Counsel
a. Ambiguities. The Parties acknowledge that this Agreement was entered into in the context of free and understanding negotiations, is not adhesive and is the product of individual bargaining among parties enjoying equal bargaining strength in a competitive market. In the event that a court is called upon to interpret any ambiguous provision in this Agreement, the Parties agree that the ambiguity shall not be construed against any Party simply because such Party may have drafted such provision.
b. Amendment; Waiver. This Agreement may only be modified by written amendment or agreement signed by the Parties. No amendment to any provision of this Agreement shall be effective unless in writing and signed by Member and OMNIA. All waivers of any right(s) provided by this Agreement or by law, or of breach or default by a Party shall be in writing. The failure to demand specific performance shall not constitute a waiver of any provision of this Agreement, or a waiver of any other default. The waiver by either Party of a specific breach of, or default under, this Agreement by the other shall not be deemed a waiver of any subsequent breach or default.
c. Assignment. Neither Party shall assign this Agreement or any rights hereunder without the other Party’s prior written consent. Notwithstanding the foregoing, OMNIA may assign this Agreement in whole or in part in connection with a sale of its assets, merger, change of control, reorganization or consolidation, or to any affiliate or subsidiary of OMNIA, in each case without the prior written consent of Member.
d. Survival. Sections 4-11 shall survive any expiration or termination of this Agreement.
e. Choice of Law. The validity, interpretation and performance of this Agreement shall be governed and construed in accordance with the laws of the State of Tennessee, without regard to its choice of law provisions. Jurisdiction and venue for any dispute between Member and OMNIA concerning this Agreement shall rest exclusively with the state and federal courts of Williamson County, Tennessee. The Parties waive all defenses of lack of personal jurisdiction and forum non conveniens related thereto.
f. Construction. All paragraph headings herein are for convenience only and are in no way to be construed as part of this Agreement or as a limitation of agreement or as a limitation of the scope of the particular section to which they refer. In the event of a conflict between the terms or conditions of this Agreement and those of any other document, the terms and conditions of this Agreement shall control.
g. Indemnification. Member agrees to indemnify, defend and hold harmless OMNIA and OMNIA’s officers, directors, affiliates, subsidiaries, trustees, employees, representatives, agents, successors and assigns from and against any and all claims, losses, damages and/or expenses, including, but not limited to, attorneys’ fees, expert witness fees and costs of settlement that arise out of or are made in connection with: (i) the sale to or use by any person or entity, of any product sold by Member, manufactured from raw materials or component parts or otherwise comprising Products purchased through or from a Supplier; (ii) the acts or omissions of Member in connection with the Program; (iii) the breach by Member of this Agreement; or (iv) any Member/Supplier Agreement.
h. Limitation on Claims. No action, regardless of form, arising out of this Agreement shall be brought by either Party more than two (2) years after such cause of action shall have accrued.
i. OMNIA Trademarks. Member shall be in breach of this Agreement if it uses any OMNIA or Program logo, trademark(s), and copyright(s) without advance consent of OMNIA, or if Member identifies itself as being affiliated with OMNIA except in the manner and means approved in writing by OMNIA.
j. Severability. If any section, subsection, paragraph or portion of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the Parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement and further agree to substitute for the invalid provision a valid provision that most closely approximates the economic effect and intent of the invalid provision.
k. Entire Agreement. This agreement contains the entire agreement of the Parties and their affiliates with respect to Member’s membership in OMNIA and any of its affiliates and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the Parties and any of their affiliates with respect to said subject matter. Without limiting the foregoing, this Agreement supersedes and replaces any agreement for membership in Prime Advantage Corporation, Corporate United Inc. and/or Corporate United Purchasing Consortium, Inc.
l. Independent Contractors. The relationship between the Parties created by these Terms is that of independent contractors and not agents, employees, partners or joint venture and neither Party shall have the power or authority to obligate or bind the other Party; provided, however, to the extent that Member makes purchases under an OMNIA Supplier Agreement, Member agrees to be bound by the terms thereof and Member may be a third-party beneficiary of the terms therein applicable to Members.