Membership Terms and Conditions
Incite is a group purchasing organization operating in accordance with 42 C.F.R. § 1001.952(j) that is developing a contract portfolio of negotiated agreements and will continue to develop and enter into agreements (“Incite Vendor Agreements”) with manufacturers, vendors, wholesalers and distributors (collectively, “Vendors”) for Products and Services (as defined below). As used in this Agreement, “Products and Services” means the goods and services available for purchase by Member under the Incite Vendor Agreements.
The Member is an approved health care provider that furnishes goods or services for which payment may be made in whole or in part under the Federal health care programs and Member is neither wholly-owned by Incite nor a subsidiary of a parent corporation that wholly owns Incite (either directly or through another wholly-owned entity), and desires to access Incite’s contracts.
In consideration of the promises of the parties contained herein, Member hereby agrees as follows:
- Incite is authorized to act as Member’s group purchasing agent and will negotiate Incite Vendor Agreements to permit, subject to the terms herein and therein, purchases by Member in accordance with terms of such agreements.
- During the term, provided Member complies with the terms and conditions of this Agreement, Member may have access to the Incite Vendor Agreements. Pursuant to the Incite Vendor Agreements, however, the Vendor is permitted to make the final determination whether or not Member is eligible to participate in Incite Vendor Agreements and access the Incite contract prices available thereunder. Incite will provide to Vendors all relevant information received from Member to establish Member’s qualifications to participate in the Incite Vendor Agreements, but Incite does not guarantee Member’s acceptance in any Incite Vendor Agreement.
- Member agrees to hold harmless Incite for any losses resulting from any purchases made by Member; Member’s failure to receive any discounted pricing; Member’s receiving any mislabeled or mis formulated Products and Services purchased under any Incite Vendor Agreement; and/or Member’s use, misuse or dispensing of Products and Services.
- Member acknowledges and agrees that the contract prices made available through Incite Vendor Agreements are only to be accessed by Member for its own use. Member shall not sell, wholesale or otherwise transfer any Products and Services purchased under Incite Vendor Agreements to any person or other entity, except as provided herein and permitted by law. Member acknowledges full understanding of and shall comply with all applicable laws and requirements as set forth under the Incite Vendor Agreements.
- Member hereby authorizes Vendors to provide Incite with any and all data regarding Member’s purchases and use of Products and Services and the provision of services under the Incite Vendor Agreements (collectively, “Data”). Incite may utilize and present such Data to the Vendors in order to substantiate (for purposes of calculating Administrative Fees and rebates due thereunder), any Member purchases made in connection with, or services provided under, the Incite Vendor Agreements and may use such Data for any other purpose in compliance with Applicable Laws. Member hereby designates Incite as Member’s contracting source.
- Member acknowledges that this Agreement pertains to all facilities owned, operated or controlled by, or under common control with, Member, including all facilities owned, operated or controlled by, or under common control with, any Person which is owned, operated or controlled by, or under common control with, Member (collectively, “Member Locations”). An initial list of the Member Locations is set forth on Exhibit A attached hereto and incorporated by reference herein. Member shall notify Incite in writing Prior to any additional Member Location becoming a member of Incite hereunder Member agrees to and shall keep Incite advised, in writing, of any material change pertaining to any change in ownership of Member; any change in wholesaler/ distributor used by Member; any change in contact name for each department using the Incite Vendor Agreements; any change in address of Member.
- Member and Incite shall each perform its duties and responsibilities hereunder in compliance with all applicable federal, state and local laws and regulations (collectively, “Applicable Laws”). It is the parties’ intent that this arrangement comply with all Applicable Laws, including without limitation, the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b) and the statutory exceptions applicable to GPO and discount arrangements and, further, that this arrangement satisfy each of the discounts safe harbor regulation at 42 C.F.R. § 1001.952(h) (“Discounts Safe Harbor”) and the group purchasing organizations safe harbor regulation at 42 C.F.R. § 1001.952(j) (“GPO Safe Harbor”). Such obligations include Member disclosing discount information and reports to the appropriate state agency and the Department of Health and Human Services (“HHS”), as necessary to comply with Applicable Laws. Member acknowledges that nothing herein or in any agreement between Incite and a Vendor shall be interpreted to obligate Incite to make reports required of Member under the Applicable Laws, it being understood that such reporting obligations apply to Member and that Member shall be solely and exclusively responsible for making such reports. Member and Incite acknowledge and agree that the administrative fee earned by Incite under the Incite Vendor Agreements constitutes an amount paid by a vendor of goods and services to a group purchasing agent of a group of entities within the meaning of 42 U.S.C. § 1320a-7b(b)(3)(C) and the GPO Safe Harbor and comparable state laws and regulations. Member acknowledges that Incite does receive from certain Vendors administrative fees of up to 3% of the purchase price of Products and Services purchased by Member under the Incite Vendor Agreements. In the event that Incite receives an administrative fee from a Vendor that exceeds 3% of the purchase price of the Products and Services purchased by Member, Incite shall on a schedule attached hereto or a schedule identified on a secure company website (which schedule shall become a part of this Agreement), specify the amount or if not known the maximum amount, Incite will be paid by such Vendor for such Member’s purchases. Such amount may be a fixed sum or a fixed percentage of the value of purchases made from the Vendor by the Member. At least annually to Member and to the Secretary of HHS upon request, Incite will provide a report of administrative fees received from each Vendor for Member’s purchases.
- Member agrees that it shall keep all information that it receives, in any form, from Incite regarding contract prices, programs, price lists, financial data, customer and supplier information, product development, business and marketing plans, and information contained in catalogs and other non-public, proprietary and confidential information of Incite (“Confidential Information”), strictly confidential and shall not directly or indirectly use (except pursuant to this Agreement) and/or reveal, report, publish, disclose or transfer to any party the Confidential Information for any purpose.
- Members may be entitled to participate and receive discounts and rebates from Vendors. Except as otherwise provided for under this agreement, Incite shall pay their share of such rebates actually received by Incite from Vendors during the Term of this agreement in accordance with Incite’s then current policies and procedures.
- This Agreement shall remain effective for an initial term of one (1) year and shall renew for successive one year periods, unless this Agreement is terminated by either party as follows:
- Either party may terminate this Agreement without cause upon ninety (90) days prior notice to the other party; or
- In the event that either party (“Defaulting Party”) shall be in default (“Default”) in the performance of any of its material obligations under this Agreement, and such Default is not cured within thirty (30) days after notice of such Default from the non-defaulting party to the Defaulting Party, the non- defaulting party may, at its option, terminate this Agreement, provided, that in the event that such Default is not capable of cure within such thirty (30) day period, and the Defaulting Party has properly commenced and pursues with diligence such cure, the Defaulting Party shall be granted such additional time as may be reasonably necessary to effect such cure, provided the non- defaulting party is not materially adversely affected.
Upon termination of this Agreement, Incite shall have no further obligations under this Agreement to Member, and this Agreement shall be null and void, except for the provisions of Sections 3, 5, 7, 8, 14 and this Section 10(b) of this Agreement which shall survive termination.
- Member has full power and authority to enter into this Agreement on behalf of itself and the Member Locations and to carry out the transactions contemplated hereby. Member, by all requisite action (whether corporate or otherwise), has duly authorized the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and no other proceedings, corporate or otherwise, on the part of Member are necessary to authorize this Agreement, which, when executed, will constitute the valid and binding agreement of Member and Member Locations, enforceable in accordance with its terms. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will constitute a violation or breach of (i) the certificate of incorporation or bylaws or other organizational documents of Member or any Member Location; (ii) any provision of any contract or other instrument to which Member or any Member Location is a party or by which Member or any Member Location, its businesses, assets or properties may be affected or secured; (iii) any order, writ, injunction or decree applicable to Member or any Member Location; or (iv) to the knowledge of Member, any statute, rule or regulation. No consent, approval, order or authorization of, or resignation, declaration or filing with any governmental or other third party, domestic or foreign, is required by or with respect to Member (or any Member Location) in connection with Member’s execution and delivery of this Agreement, or the consummation of the transactions contemplated hereby. Each party represents they have not: (1) been served with a notice of proposed exclusion, or committed any acts which are cause for exclusion from participation in or had any sanctions or civil or criminal penalties imposed upon it under, any federal or state health care program, including, but not limited to, Medicare or Medicaid, or (2) been convicted under federal or state law (including, without limitation, a plea of nolo contendere or participation in a first offender deterred adjudication or other arrangement whereby a judgment of conviction has been withheld), of a criminal offense related to
(a) fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct in connection with the delivery of a health care item or service or with respect to any act or omission in any health care program operated or financed in whole or in part by any federal, state or local government agency, or
(b) the unlawful manufacture, distribution, prescription or dispensing of a controlled substance. Each party further agrees to notify the other party immediately after such party becomes aware that any of the foregoing representations and warranties may be inaccurate or may become incorrect.
- Any notice required to be given pursuant to this Agreement shall be in writing and sent by certified mail, return receipt requested, or overnight delivery service such as Federal Express, Airborne or UPS or verifiable telephonic facsimile. This Agreement shall be governed and interpreted under the laws of the State of Delaware without regard to conflict of law principles.
- EXCEPT FOR THE EXPRESS WARRANTIES MADE OR REFERENCED HEREIN, Incite MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS AND WARRANTIES RELATED TO THE PRODUCTS AND SERVICES MADE AVAILABLE UNDER THE INCITE VENDOR AGREEMENTS AND ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- This Agreement may not be assigned by either party except that Incite may assign this Agreement in connection with a change of control of such party. Additionally, the relationship between Incite and Members is one of an independent contractor only and nothing in this Agreement shall be construed to create a principal/agent, employer/employee or master/servant or fiduciary relationship between Incite and Member unless otherwise expressly specified herein.
- This Agreement may be amended or modified only by a written agreement executed by all of the parties hereto.