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E-PHLEBOLOGY GROUP PURCHASING ORGANIZATION PARTICIPATION AGREEMENT AND TERMS OF USE


This Group Purchasing Organization Participation Agreement and Terms of Use (the "Agreement") is made and entered into as of the date accepted by the Member,  (the "Effective Date").  


RECITALS

    A. GPO is a group purchasing organization ("GPO") as described in 42 C.F.R. 1001.952(j), established by a vein specialist with clinical expertise in new product evaluation.

    B. GPO negotiates contracts (the "Contracts") for the purchase of selected medical devices (the "Products") from vendors (the "Contracted Vendors").

    C. GPO offers participating practitioners the opportunity to purchase Products from Contracted Vendors upon favorable terms as Members of the GPO.

    D. The Member desires to become a participant in GPO eligible to purchase Products from the Contracted Vendors upon favorable terms pursuant to the Contracts.

    E. GPO will receive a fee (the "GPO Fee") from the Contracted Vendor for each purchase of Products from a Contracted Vendor by the Member.

    F. GPO and the Member intend and desire to enter into this Agreement in compliance with the Anti-Kickback Statute and regulations (42 U.S.C. 1320a-7b(b) and 42 C.F.R. 1001.952(j)) and the Stark Law (42 U.S.C. 1395nn and 42 C.F.R. 411.351, et seq.).

    G. The parties enter into this Agreement in consideration of these premises and the commitments of the parties hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. 


AGREEMENTS

    1. Contracts. GPO shall enter into such Contracts for Products with such Contracted Vendors as it determines. GPO shall provide copies of such Contracts to the Member upon request. From time to time, GPO shall supply the Member with a current Product list of the Contracted Vendors and their prices, in the form of Schedule A. The Member hereby appoints GPO as its purchasing agent for negotiation of Contracts on behalf of the Member, provided, however, that the Member shall be entitled, at its sole discretion, to purchase goods and services directly from the Contracted Vendors subject and pursuant to the terms of the applicable Contract. GPO acknowledges and agrees that the Member may participate in other GPO arrangements at its discretion.

    2. Member Accounts. GPO shall assign each Member an account number (the "Member Account Number"), which will be shared with Contracted Vendors for the purpose of establishing GPO purchasing arrangements and calculating the GPO Fee.

    3. Confidentiality. The Member agrees to keep all information designated as "Proprietary and Confidential" by GPO or any of GPO's Contracted Vendors in strictest confidence.

    4. GPO Fee. The Member understands and agrees that each Contracted Vendor will pay a GPO Fee to GPO of three percent (3%) of the purchase price of the goods or services provided by Contracted Vendors. GPO shall notify the Member on an annual basis, and the Secretary of the U.S. Department of Health and Human Services or his or her designee on request, of the amounts received from each Contracted Vendor with respect to purchases made by or on behalf of the Member. It is the intent of the parties that the GPO Fee be paid, collected and reported in a manner which is consistent with the safe harbor for group purchasing organizations, set forth at 42 C.F.R. 1001.952(j).

    5. No Other Fees. GPO and the Member acknowledge that there are no fees payable by the Member for participation in the GPO operated by GPO. The Member's only obligation with respect to the GPO Fee is to pay the purchase price for the Products purchased to the applicable Contracted Vendor. GPO acknowledges and agrees that its sole compensation for the services provided to the Member pursuant to this Agreement shall be the GPO Fee paid to GPO by the Contracted Vendors.

    6. Member Responsibilities. It is the sole responsibility of the Member to establish and maintain an individual account with each of the Contracted Vendors (a "Vendor Account"). Member is responsible for providing Contracted Vendors with any and all applicable verification to meet state and federal requirements for sale of Products under this Agreement, which verification may be required in order to establish a Vendor Account.

    7. Disclosures. Any physician who has a direct financial relationship (as such terms are defined in 42 C.F.R. 411.351) with GPO shall disclose such financial relationship in writing to each of his or her patients to whom such physician refers or recommends the use of any of the Products purchased pursuant to the Contracts in accordance with this Agreement.

    8. Term and Termination. This Agreement will be effective on the Effective Date, and shall continue in effect for one full year. Thereafter, this Agreement shall automatically renew for additional terms of two years each. This Agreement may be terminated at any time, by either party, with or without cause, upon ninety (90) days' prior written notice to the other party.

    9. Representations and Warranties. Each party hereby represents and warrants to the other party that its execution, delivery, and performance of this Agreement is within its corporate powers and has been duly authorized by all necessary corporate actions. Each party hereby further represents and warrants that it shall comply with all laws and regulations applicable to this Agreement, and that this Agreement constitutes a valid and binding agreement, enforceable in accordance with its terms.

    10. No Further Warranties. The only warranty applicable to any Products provided under this Agreement is that provided by the Contracted Vendor or the manufacturer. GPO does not warrant against any damages arising from any defects in the Products, or arising from use of the Products. GPO HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

    11. Limitation of Liability. In no case shall GPO be liable for any special, incidental, or consequential damages arising out of or connected to any use or misuse of the Products. Should the Products prove defective after purchase, the Member and not GPO assumes the entire cost of any necessary repair or replacement, and the Member agrees to look solely to the Contracted Vendor or the manufacturer for the remedy of any such defects. Member assumes all risks and liability from use of the Products.

    12. Insurance. Each party shall procure and maintain a commercial insurance policy or a funded self-insurance program, on an occurrence basis, with limits of $1,000,000 per occurrence, $3,000,000 annual aggregate, which provides coverage for any claims arising from the acts or omissions of such party, its officers, directors and employees, in the performance of such party's obligations pursuant to this Agreement.

    13. Third Party Beneficiary. This Agreement is solely for the benefit of the parties and their respective successors and permitted assigns, and no other person (including a Contracted Vendor) has any right, benefit, priority or interest under or because of the existence of this Agreement.

    14. No Joint Venture or Partnership. The parties agree that nothing contained herein is to be construed as making the parties joint venturers or partners.

    15. Record Maintenance and Access. Until the expiration of four years after the furnishing of the Services under this Agreement, upon written request by the Secretary of the United States Department of Health and Human Services, the United States Comptroller General, or any of their duly authorized representatives, each party will make available the contracts, books, documents, and records necessary to verify the nature and extent of the costs of providing services under this Agreement. If either party carries out any of the duties of this Agreement through a subcontract with a value of $10,000 or more over a 12-month period with a related individual or organization, such contracting party agrees to include in any such subcontract a clause permitting access by the Secretary, the Comptroller General, and their representatives to the related subcontractor's books and records. This clause shall apply solely to the extent that the requirements of 42 U.S.C. ?1395x(v)(1)(I) and the regulations 42 C.F.R. ??420.300-420.304 apply to this Agreement. No attorney-client, accountant-client or other legal privilege will be deemed to have been waived by virtue of this Agreement. In the event of a request for access, each party agrees to notify the other party immediately, to inform the other party as to what response will be made to the request, and to provide the other party access to such books and records. Notwithstanding any provision in this Agreement to the contrary, both parties shall comply with lawful requests for access to records by federal, state or local government agencies, unless otherwise ordered by a court or administrative agency of competent jurisdiction.

    17. Change in Law. In the event that legislation is enacted or a regulation is promulgated or a judicial or administrative decision is rendered, or an interpretation of any of the foregoing changes, that affects, or may affect, the legality of this Agreement or adversely affect the ability of either party to perform its obligations or receive the benefits intended hereunder, then, within thirty (30) days following notice by either party of such event, each party shall negotiate in good faith a substitute agreement to this Agreement which will carry out the original intention of the parties to the extent possible in light of such legislation, regulation or decision.

    18. Judicial Interpretation. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent prepared the same, it being agreed that the agents of both parties have participated in the preparation hereof.

    19. Assignment. The rights and obligations provided under this Agreement are not assignable by either party without the written consent of the other party. All provisions of this Agreement are binding upon, inure to the benefit of, and are enforceable by or against the parties and their respective heirs, executors, administrators or other legal representatives and permitted successors and assigns.

    20. Construction and Administration of Agreement. This Agreement shall be interpreted, construed and governed according to the laws of the State of Minnesota. Each and every provision, section, subsection, paragraph and clause herein shall be separable from each and every other part hereof, so that the invalidity of any part hereof shall not affect the validity of the remainder. No waiver of a breach of any provision of this Agreement shall be construed to be a waiver of any breach of any other provision. No delay in acting with regard to any breach of any provision of this Agreement shall be construed to be a waiver of such breach. Every right and remedy of each of the parties shall be cumulative and either party, in its sole discretion, may exercise any and all rights or remedies stated in this Agreement or otherwise available at law or in equity. This Agreement may be executed by the parties on any number of separate counterparts, and all such counterparts so executed constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart. Headings contained in this Agreement have been inserted herein only as a matter of convenience and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.

    21. Amendments. Amendments may be made to this Agreement only upon the mutual consent and approval in writing by both parties.

    22. Entire Agreement. This Agreement, together with any schedules, exhibits, appendices, and other attachments hereto, all of which are hereby incorporated by reference and made a part of this Agreement, constitutes the entire agreement between the parties, and supersedes all proposals, oral and written, and all other communications between the parties in relation to the subject matter of this Agreement. The parties hereto agree that no warranties, inducements or representations exist except as stated herein.

The parties hereto have caused this Agreement to be executed as of the date of acceptance by user utilizing the e-phlebology website located at www.ephlebology.org.


SCHEDULE A

A listing of GPO Participating Vendors, Phlebology Products including Capital Equipment, Supplies, and Services will be available to each GPO Member once a GPO Member Agreement is signed by both parties. The GPO Member will be able to access the ePhlebology website at www.ePhlebology.com to obtain contact information for each participating GPO Vendor. Each GPO Member will need to establish an "Account" with each GPO Vendor they wish to purchase "Phlebology Products" from.
By Submitting this form I agree to the above GROUP PURCHASING ORGANIZATION PARTICIPATION AGREEMENT

After submitted application for GPO Membership is reviewed, an email confirmation of Login Information including Username and Password will be sent to the Member Physician.
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