1. Participant acknowledges and agrees that before it may purchase through SNS Vendors, SNS may need to ensure that its Vendors have no objection to granting Participant access to SNS Vendors. Participant further acknowledges and agrees that, in the event that Participant purchases Products pursuant to an SNS Vendor Agreement: (i) Participant shall comply with any and all applicable terms and conditions set forth in such SNS Vendor Agreement; (ii) Participant shall use Products for its own use in the provision of healthcare services and in no event shall Participant sell, resell, lease, or otherwise transfer Products purchased through SNS Vendors to a third party; (iii) Participant shall be responsible for placing all orders and arranging all deliveries through the Vendor directly; (iv) all of Participant’s purchases shall be in the name of, and between, Participant, on the one hand, and Vendor, on the other hand, and SNS shall not be a party to any such purchases; (v) Vendor shall not send any invoices to SNS, and SNS shall not assume any financial responsibility, in whole or in part, for any Participant purchases; (vi) SNS shall have the right, in its sole discretion, to enter into, modify, and/or terminate any Vendor Agreement; (vii) SNS shall not be liable for any Participant’s or Vendor’s individual performance under or through this Agreement or any Vendor Agreement, including but not limited to any payments or any Products furnished pursuant to this Agreement; and (viii) Participant shall not negotiate or enter into any separate agreements for any Products with any Vendor without the prior written consent of SNS, in its sole discretion.
2. Participant acknowledges and agrees that by entering into this Agreement, the Parties have not established, and do not intend to establish, a “business associate” relationship, as such term is defined under the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191 (“HIPAA”)
and its implementing regulations, as may be amended from time to time. Under no circumstances will SNS request from Participant, nor will Participant provide to SNS, “protected health information,” as such term is defined in HIPAA. For the avoidance of doubt, Participant agrees that SNS is not engaging
any Vendor as its downstream business associate.
3. This Agreement shall commence on the Effective Date and shall continue for a period of three (3) years (“Initial Term”) and will automatically renew annually for successive one (1) year terms (each a “Renewal Term”), until this Agreement is terminated by either Party as set forth herein. The Initial Term
and any Renewal Term are collectively referred to herein as the “Term.” In addition, this Agreement may be terminated as follows: (i) SNS may terminate this Agreement without cause upon thirty (30) days’ prior written notice to Participant; (ii) SNS or Participant may terminate this Agreement in the
event the other Party breaches any of its material obligations hereunder provided, however, that the defaulting Party shall have thirty (30) days to cure such breach after written notice is given by such non-breaching Party specifying the alleged breach; or (iii) SNS may immediately terminate this
Agreement in the event that Participant at any time breaches a representation or warranty as set out below in Sections 5, 6, and 7.
4. Upon any expiration or termination of this Agreement, all provisions of this Agreement that contain obligations which extend past the termination date shall survive the termination or expiration of this Agreement, including, without limitation, Participant’s indemnification obligations.
5. Participant represents, warrants, and guarantees that at all times during the Term of this Agreement:
(i) Participant shall comply with all applicable federal, state, and local laws, rules, and regulations,
including, without limitation, the AKS and its regulations, as any of the foregoing may be amended from time to time (collectively, “Laws”) and, to that end, to the extent Participant receives discounts, rebates, or any other price reductions as a result of purchases through or under an SNS Vendor Agreement, or any other remuneration under this Agreement or from any SNS Vendor, Participant may have an obligation under applicable Laws to disclose such price reductions or remuneration to Federal Health Care Programs (as hereinafter defined), state health care programs, or other payors, and Participant shall comply with all such disclosure obligation’s and other applicable Laws;
(ii) Participant is a healthcare provider that submits claims to and receives reimbursement by Federal Health Care Programs (as hereinafter defined) and neither Participant nor any of its owner, directors, officers, employees, or agents have ever been, and shall never be during the Term of this Agreement, (i) excluded from participation in any Federal Health Care Program (as such term is defined in 42 U.S.C. § 1320a-7b(f)) (“Federal Health Care Program”), debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any federal department or agency, or (ii) the subject of an actual, pending, or threatened formal adverse action, as that term is defined in 42 U.S.C. § 1320a-7e(g); further, Participant shall notify SNS immediately (and not longer than three (3) business days) in the event it is excluded from any Federal Health Care Program, or debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any federal department or agency, during the Term of this Agreement.
(iii) Participant has all necessary permits, consents, approvals, licenses, waivers, and any other federal, state, or local authorizations required to perform its obligations under this Agreement and will furnish copies of these to SNS upon request.
(iv) Participant represents and warrants that its execution and performance of this Agreement does not conflict with or violate any other agreement or obligation to which Participant is subject or by which it is bound.
6. Participant shall indemnify, defend, and hold harmless SNS, and its owners, directors, officers, agents, and employees, (each, an “Indemnified Party” and collectively, the “Indemnified Parties”), against any and all losses, claims, liabilities, lawsuits, causes of action, judgements, costs, damages, and
expenses whatsoever, including reasonable attorneys’ fees, consultant fees, and court costs, (collectively referred to as “Claims”), arising out of, incident to, relating to, or in any manner occasioned by or attributable to: (i) Participant’s breach of any representation, warranty, covenant, or
obligation set forth in this Agreement; (ii) any intentional or negligent act or omission by Participant, or any of its parents, affiliates, or subsidiaries and/or their respective owners, directors, officers, employees, contractors, and/or agents in the performance of this Agreement; (iii) Participant’s
relationship or arrangements with any Vendor (including, but not limited to, any Claims arising in tort or breach of contract); and/or (iv) any third party claims arising out of death, bodily injury, or property damage to the extent that such claim is the result of negligent acts, negligent omission to act, or willful misconduct by Participant, or any of its parents, affiliates, or subsidiaries and/or their respective owners, directors, officers, employees, and/or or agents.
7. SNS does not make, and expressly disclaims, any warranty of merchantability or fitness for a particular purpose, or any other warranty, expressed or implied, as to any products sold by any Vendor; and Participant expressly releases SNS from any and all liability and claims related to the products and any
breach or alleged breach of warranty in connection with the products.
All remedies available to SNS herein under this Agreement, at law, or in equity, are cumulative and not mutually exclusive. SNS and its parents, subsidiaries, affiliates, directors, officers, agents, and employees shall not be liable to Participant for any act, or failure to act, in connection with this Agreement, and shall not be liable for any act or failure to act, including, but not limited to, any failure of a Vendor to furnish the Products that the Vendor has agreed to furnish under any Vendor Agreement. Without limiting the generality of the foregoing, SNS hereby disclaims and excludes any express or implied representation or warranty regarding any Products under any Vendor Agreement. Further, SNS shall not be liable for special, incidental, or consequential damages under this Agreement, even if advised of the possibility thereof.
8. This Agreement may not be transferred or assigned without the prior written consent of the non- assigning party; provided, however, that SNS may, without the consent of Participant, assign this Agreement to an affiliate of SNS or to the successor in interest in the event of a merger or sale of substantially all of its assets. Any attempt to assign this Agreement without the required consent shall be void.
9. This Agreement constitutes the entire agreement of the parties with respect to the transactions contemplated hereby. This Agreement supersedes all written or oral prior agreements or understandings with respect to the subject matter hereof. This Agreement may not be amended or modified, and no
provision of this Agreement may be discharged or waived, except by a writing signed by SNS and Participant. A waiver of any particular provision will not be deemed a waiver of any other provision, nor will a waiver given on one occasion be deemed to apply to any other occasion.
10. In the event any provision of this Agreement is for any reason deemed to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement, and this Agreement will be construed by limiting or invalidating such provision to the minimum extent necessary to make such provision valid, legal, and enforceable.
11. Any notice required by this Agreement will be deemed to be properly given if sent by (i) certified or registered mail, return receipt requested, or (ii) national courier service, such as federal express, at the addresses set forth below or at any other address of which notice has been properly given pursuant to the provisions of this Section 11:
SNS: SupplyNet Solutions, LLC Attention: Jack Katz Email: info@supplynetsolutions.com | Vendor: Name & Address listed on… ATTN: Signatory |
12. This Agreement will be construed under and governed by the laws of the State of New York.
13. The Parties to this Agreement are independent contractors and are solely responsible for the conduct of their respective employees, agents, and representatives in connection with the performance of their obligations under this Agreement. Neither Party will, by entering into this Agreement, become liable for any of the existing or future obligations, liabilities, or debts of the other Party; and specifically, without limitation, SNS shall in no event and under no circumstances be liable or responsible for any payment, in whole or in part, that Participant owes or is alleged to owe to any Vendor. Nothing in this Agreement will be construed as creating a partnership or joint venture between SNS and Participant.
