The following Terms and Conditions (“Terms”) shall govern the contractual relationship (“Agreement”) between Collaborative Concepts LLC., an Illinois Limited Liability Company (“Collaborative”), and Its members (“Member”) hereinafter referred to as (“Company”) or (“Member”), each, a (“Party”) and, collectively, the (“Parties”).
WHEREAS, Collaborative has developed various aggregated purchasing programs (each, and collectively, “Program”) with (“Vendor Partners”) generating savings or value through deeper discounts, rebates and/or enhanced contractual terms.
WHEREAS, Company hereby recognizes Collaborative as a non-exclusive purchasing consultant for purposes of negotiating Vendor Partner agreements. Further Company desires access to the Collaborative’s Vendor Partner agreements, as defined herein under the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties agree as follows:
1. Membership; Term
Company is hereby admitted as a participant of the Program which leverages Collaborative Members’ aggregated spend with Vendor Partners. Member agrees that Collaborative may directly provide access to such agreements, provided that Member may opt out of any Vendor Partner agreement at its sole discretion. The term of this Agreement shall commence on the Effective Date and shall continue until either Party terminates this Agreement in accordance with the terms hereof (the “Term”). Either Party may terminate this Agreement for any reason upon not less than thirty (30) days’ advance written notice to the other Party. If any purchase or purchase order between Member and a Vendor Partner is executed prior to the termination of this Agreement and would otherwise extend beyond the end of the Term, the Term of this Agreement will be extended through the fulfillment of such purchase.
2. Vendor Partner Relationships; Contract Administrative Fees and Member Aggregation Rebates
Member will have the opportunity to purchase Products/Services from one or more Vendor Partners through the Collaborative agreements, the general terms, and conditions of which will have been negotiated and coordinated by Collaborative. In certain instances, a Vendor Partner may, as a condition of participation, require that Member to enter into a direct participation agreement with such Vendor Partner with respect to specific terms applicable to Member (each such agreement, a “Vendor Partner Direct Agreement”).
a. Member acknowledges that Vendor Partners may pay Collaborative fees and other payments, usually in the form of an “administrative fee,” or “rebate” which may be based on a percentage of gross revenues received by the Vendor Partners from the sale of Products/Services to Members.
b. While all Vendor Partner agreements are unique, it is the intention of the Collaborative to share a portion of the Contract Administrative Fees and/or Rebates back with Members. In order to receive a portion of these Fees/Rebates, Member must be an active Member in good standing to be eligible to participate in the distribution. While there is not a “cost” to participate in Collaborative’s Vendor Partner Agreements, Collaborative reserves the right to establish a minimum threshold of fee/rebate generation in order to participate in the distribution. Finally, Collaborative relies on its Vendor Partners to accurately report sales and fees/rebates on a per Member basis. Accordingly, any distribution to Members will entirely be contingent upon the reporting and receipt of fees/rebates from Vendor Partners to Collaborative.
c. Member shall be solely responsible for the purchase and ordering of Products/Services from Vendor Partners, and Collaborative shall not be liable in any fashion for any violation by Member of a Collaborative Vendor Partner Agreement, a Vendor Partner Direct Agreement, or for payment for any Products/Services. Payment for Products/Services ordered from any Vendor Partner by Member and inspections and acceptance of such Products/Services shall be the exclusive obligation of Member, and Member shall make timely payments to the Vendor Partner in accordance with the terms of the Collaborative Vendor Partner Agreement and/or any Vendor Partner Direct Agreement. Member acknowledges that delays in payment by Member could jeopardize any rebate, discount, or other earned incentive payable under a Collaborative Vendor Partner Agreement. Payment of all such earned incentives, enhancements, rebates, allowances, and/or discounts are the sole responsibility of Vendor Partners.
3. Property Listings
In order to participate in certain Vendor Partner Agreements, Member may be required to provide Collaborative with a listing of all properties owned and/or managed by Member (collectively, the “Properties”). As necessary, Member agrees to provide Collaborative with a personnel listing for each Property including name, title, address, telephone number, and email address, which will be utilized to establish Member reporting, and to provide written notification of any changes to such listing.
4. Confidentiality
Both Parties acknowledge that each shall be provided or exposed to confidential supplier pricing, pricing terms, incentive information, contract terms, Program information and benefits, the terms of Collaborative Vendor Partner Agreements, contact information for suppliers, the names and contact information of other members, and other trade secret and proprietary information generally made available only to each other (all of which is hereinafter collectively referred to as “Confidential Information”). Each Party agrees not to disclose or release such Confidential 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.
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 for so long as such Confidential Information is deemed a trade secret under applicable law.
5. Compliance with Laws
The Parties shall procure Products/Services in accordance with and subject to relevant federal, state, and local statutes, ordinances, rules, and regulations. The Parties agree 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 and accurately report discounts, incentives or rebates, if applicable. Further, Member represents and warrants that it is not a Health Care Provider, Hospital or any entity enrolled in Medicare, any Medicare program or any federal healthcare program as a provider of services or a provider or supplier of medical or health services.
6. Disclaimers
COLLABORATIVE EXPRESSLY DISCLAIMS AND MEMBER HEREBY WAIVES ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES REGARDING THE PROGRAM, PRODUCTS/SERVICES, SUPPLIERS, COLLABORATIVE VENDOR PARTNER AGREEMENTS, AND VENDOR PARTNER DIRECT AGREEMENTS, AND MEMBER SHALL HAVE NO CLAIM AGAINST COLLABORATIVE FOR ANY PRODUCTS/SERVICES THAT MAY BE DAMAGED, DEFECTIVE, NOT IN ACCORDANCE WITH SPECIFICATIONS OR OTHERWISE NOT SUITABLE FOR INTENDED USE. NEITHER PARTY SHALL BE LIABLE IN ANY WAY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR RELIANCE DAMAGES. FURTHER, MEMBER ACKNOWLEDGES AND AGREES THAT COLLABORATIVE SHALL HAVE NO LIABILITY, AND MEMBER HEREBY RELEASES COLLABORATIVE AND ITS SUBSIDIARIES AND AFFILIATES, FOR ANY ACT OR OMISSION BY A SUPPLIER OR OTHER PARTY UNDER ANY COLLABORATIVE SUPPLIER AGREEMENT OR VENDOR PARTNER DIRECT AGREEMENT.
7. Notices
All notices in connection with this Agreement may sent via certified mail or via national courier.
8. Other Terms
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 Illinois, without regard to its choice of law provisions. Jurisdiction and venue for any dispute between Member and Collaborative concerning this Agreement shall rest exclusively with the state and federal courts of Champaign County, Illinois. The Parties waive all defenses of lack of personal jurisdiction and forum non convenience related thereto.
9. Indemnification.
Each Party shall hold harmless and indemnify the other party, its shareholders, 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 a negligent act or omission of either Party.
10. Independent Contractors. The relationship between the Parties created by this Agreement is that of independent contractors and not employees, partners, or joint ventures 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 any Collaborative Vendor Partner 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.