VENDOR CREDIT TERMS AND MEMBERSHIP AGREEMENT
This VENDOR CREDIT TERMS AND AGREEMENT is entered into ___(Today’s Date)___ by and between Purchasing Services Holdings, LLC, a Delaware Corporation (hereafter “PSI”) and ___(Practice Owner’s Name)___ , (“Practice Owner”) and ___(Practice Name)___ , (the “Veterinary Practice” and together with the Practice Owner collectively, the “Practice”).
Vendor Credit Terms
Parties hereby agree that all purchases from PSI and its approved vendors (“Approved Vendors”) made are subject to the following terms and conditions.
- The undersigned Practice hereby agrees that all amounts due for goods and services purchased from PSI and its Approved Vendors are payable at the address so designated on the monthly billing statements.
- The undersigned agrees that all amounts due PSI and Approved Vendors (including, without limitation, goods and services purchased) are payable in full within 30 days from the date of invoice, unless otherwise agreed in advance in writing with PSI or such Approved Vendor, as applicable. PSI has the right to assist Approved Vendors with the collection of any amount due that is not paid within said period. A delinquency charge of 1-1/2% per month of the delinquent balance shall be added to such overdue amount, but not to exceed the lesser of (i) 18% per annum and (ii) the maximum amount permitted under the applicable law.
PSI is engaged in the business of coordinating the purchasing activities of various providers of animal hospital services and products in an effort to provide cost savings to the Approved Vendors and corresponding price savings to the members of PSI (“PSI Members”) purchasing from Approved Vendors.
Activation – Activation of membership will commence no less than seven (7) business days from the date of signature of Practice. In order to receive accurate PSIvet Member pricing on initial orders Practice must inform each Approved Vendor that Practice is a new PSI Member at the time it places its first order with an Approved Vendor. PSI Member pricing shall be available to Practice only after activation. PSI will promptly notify Approved Vendors of new member activations as well as members who are to be terminated from the program.
Agent – Practice agrees to purchase a minimum of 80% of all of its veterinary supplies and pharmaceuticals as a PSI Member from Approved Vendors. PSI acknowledges that Practice may be part of other group purchasing organizations (GPO), or similar organizations. During the term of this Agreement, Practice agrees to designate PSI as its GPO for all vendors that are affiliated with PSI. All purchases Practice makes from an Approved Vendor shall be through PSI and not through another GPO or similar organization.
Application – The New Member Application submitted to PSI by the Practice is true and correct and is incorporated herein by reference.
Arrangements – Purchases made by the member from Approved Vendors will be made directly from Approved Vendors. The items purchased will be shipped directly by Approved Vendors to Practice.
PSI’s Responsibilities – PSI will regularly solicit commitments from individual vendors in an attempt to obtain the lowest program prices for PSI Members. PSI will use commercially reasonable efforts to obtain the lowest prices on goods and services from Approved Vendors. To assure Approved Vendor price compliance, PSI may verify Approved Vendor invoices on a routine basis as PSI deems appropriate. Discrepancies will be corrected by PSI personnel with a copy of the corrections forwarded to the appropriate Approved Vendors. Services and product availability may vary by geographic area.
Fees – Practice will pay to PSI, for services to be rendered, a monthly membership fee in advance in the amount of $60.00 per month (as the same may be modified from time to time by PSI). No reduction in monthly fee will be made because of an election by Practice to purchase any items from outside vendors. In recognition of the work performed by PSI, Approved Vendors will be charged an administrative fee by PSI on net sales to PSI Members.
Rebates – Rebates may be earned by PSI Members and will be paid based on information provided by the Approved Vendor, and only after the Approved Vendor actually pays such rebates to PSI. Any payments shall be made to the PSI Member and using the contact information/payment information on record at the time the payment is paid. It is the sole responsibility of the PSI Member to inform PSI in writing of any changes that would require PSI to make the payment to any other payee or in any other form of payment than is used by PSI at that time. PSI has the right to offset from any rebates it administers any Fees owed to PSI from any PSI Member. All terms and conditions related to the accrual and distribution of rebates will be determined by the contract between the Approved Vendor and PSI.
Terms – This Agreement will commence on the date specified in preamble to this Agreement. This Agreement may be terminated by either party upon thirty (30) days prior written notice to the other party.
– PSI offers PSI Members a 90-day satisfaction guarantee. If not completely satisfied, and the PSI Member cancels its membership during the first 90 days, any membership fees paid by such PSI Member will be refunded. Cancellation requests must be submitted in writing and include the owner’s signature.
– PSI may terminate this agreement upon written notice to Practice in the event Practice fails to timely pay any vendor or PSI or in the event Practice violates the terms of this Agreement.
Member Communications – PSI and Approved Vendors may communicate with PSI Members via email, fax or text. By signing this Agreement, Practice agrees to opt-in to receive these communications.
Member Benefits – Approved Vendors provide PSI Members discounts and/or rebates. By signing this Agreement, Practice designates PSI as Practice’s GPO and opts-in to receive these benefits.
Miscellaneous – This Agreement may be modified in writing only. Any notice given under the terms of this Agreement will be given by registered or certified mail, return receipt requested, and will be effective on the date of receipt and addressed to each party at its respective address as described below.
- Practice retains title and ownership in its intellectual property, including trademarks and service marks. Practice grants PSI the right to use such trademarks or service marks on PSI’s website, marketing or advertising, in communications with Approved Vendors, and in any other way necessary to carry out the purpose of this Agreement.
- Practice acknowledges and agrees that throughout the course of this Agreement, PSI may receive data about Practice including information on Practice’s purchasing history. Practice grants PSI the right to use such data in an anonymized and aggregated form and the right to use non-aggregated or anonymized data only to provide communications, discounts, promotions, and vendor recommendations to Practice.
- Both parties represent and warrant that they are in compliance with all applicable local, state, and federal laws, rules, regulations, and ordinances.
- EXCEPT AS EXPRESSLY AUTHORIZED HEREIN, NEITHER PARTY IS LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES ARISING OUT OF ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED, OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF EITHER PARTY AND/OR ITS AFFILIATES UNDER THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY, SHALL IN NO CASE EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY THE MEMBER TO PSI UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OUT OF WHICH THE LIABILITY AROSE. THIS LIMITATION SHALL APPLY ON A CUMULATIVE BASIS RATHER THAN PER INCIDENT. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER THE LIMITED REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
Governing Law and Jurisdiction. This Agreement and any claim or controversy arising hereunder or in connection herewith, whether sounding in tort or contract, and whether brought at law or in equity, shall be governed by and construed in accordance with the internal substantive laws of the State of Delaware (regardless of the choice of law rules). The parties consent to the personal jurisdiction in the state courts located in or federal courts serving Wilmington, Delaware, and agree that such courts are the exclusive venue for any dispute regarding the subject matter of this Agreement.
Acknowledgement of Terms and Agreement
Practice has read and agrees to the terms listed above. Any notice required to be given to the Practice will be mailed to the address set forth in the Application unless changed by Practice in writing by notice to PSI given in accordance with to the “Miscellaneous” section above. Any notice required to be given to PSI will be mailed to the following address:
Purchasing Services Holding, LLC
2951 34th Street South
St. Petersburg, FL 33711
This CONFIDENTIALITY AGREEMENT made on ___(Today’s Date)___ by and between ___(Practice Name)___ and ___(Practice Owner’s Name)___ , hereinafter individually and collectively referred to as “PRACTICE” or “RECIPIENT” and Purchasing Services Holdings, LLC, a Delaware Corporation with a principal place of business located at 2951 34th Street South, St. Petersburg, FL 33711, hereinafter individually and collectively referred to as “PSI” or “DISCLOSER.”
PRACTICE and PSI have discussed the possibility of engaging in certain business transactions (collectively, the “TRANSACTION”). In order to enable PRACTICE and PSI to proceed with such Transaction, PSI desires to disclose to PRACTICE certain confidential information for the purpose of facilitating such Transaction. PRACTICE and PSI desire to protect the confidentiality of all information that PSI furnishes to PRACTICE and they desire to hold the information in a confidential manner. The purpose of this Agreement is to set forth the agreement of PRACTICE and PSI to engage in Transactions that benefit not only PRACTICE, but all practices that are members of PSI in a confidential manner, as hereinafter described.
In furtherance of the foregoing and in consideration of the mutual promises contained herein, the parties hereto agree as follows:
- Confidential Material.
(a) As a condition to being furnished information from Discloser, Recipient agrees to treat any information and any financial information, data, methods of operation, business plans, trade secrets or proprietary information) concerning the Discloser or any of its affiliates (whether prepared by the Discloser, its advisors or otherwise) which is furnished to the Recipient (whether orally, in writing, photographically or otherwise) by or on behalf of the Discloser, together with analyses, compilations, studies or other documents, records, technology, or data prepared by the Recipient or the Recipient’s advisors which contain, summarize or otherwise reflect or are generated from such information (herein collectively referred to as the “Confidential Material”) in accordance with the provisions of this Agreement and to take or abstain from taking certain other actions herein set forth.
(b) The term “Confidential Material” does not include information which (i) is already in the Recipient’s possession, provided that such information is not known to be subject to another confidentiality agreement with, or other obligation of, secrecy to the Discloser or another party, (ii) becomes generally available to the public other than as a result of a disclosure by the Recipient or a known disclosure by the Recipient’s partners, affiliates, directors, officers, employees, agents, advisors, or representatives of the Recipient’s advisors (any such partners, affiliates, directors, officers, employees, agents, advisors or representatives of advisors in respect of a Party, collectively, its “Representatives”), (iii) becomes available to the Recipient on a non-confidential basis from a source other than the Discloser or its advisors, provided that such source is not known by the Recipient to be bound by a confidentiality agreement with or other obligation of secrecy to the Discloser or another party, or (iv) is independently developed by the Recipient without use of or reference to the Confidential Material and without violating any obligations under this Agreement.
(c) The Parties understand and agree that information concerning the “Transaction” may have been disclosed to “Recipient” by “Discloser” prior to the Effective Date and therefore any such information so disclosed to “Recipient” shall be considered “Confidential Material” as that term is defined herein.
- Use of Confidential Material. The Recipient hereby agrees that the Confidential Material will be used solely for the purpose of evaluating and carrying out the Transaction, that such information will not be used in any way directly or indirectly detrimental to the Discloser, and that such information will be kept confidential by the Recipient and its Representatives
- Disclosure of Confidential Material. For so long as the obligation of confidentiality continues in relation to any part of the Confidential Material, the Recipient will not disclose that Confidential Material, directly or indirectly, to any person except that (i) any of such Confidential Material may be disclosed to the Recipient’s Representatives who need to know such information solely for the purpose of evaluating the Transaction (it being agreed that such Representatives shall be informed by the Recipient of the confidential nature of such information, shall be directed by the Recipient to treat such information confidentially and shall agree to be bound by this Agreement), and (ii) any disclosure of such information may be made to which the Discloser consents in writing. Confidential Material may not be copied, duplicated or otherwise reproduced, in whole or in part, without the prior written consent of the Discloser, except for such copies as the Recipient may require pursuant to this Agreement for internal purposes or to give to its Representatives on a need-to-know basis.
- Required Disclosure of Confidential Material. In the event that the Recipient or any of its Representatives are required by law or regulation, or required or requested by any competent judicial, governmental, supervisory or regulatory body (by deposition, interrogatory request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Material, the Recipient will effect such disclosure (or will procure, where possible, that such disclosure be effected) in a manner reasonably designed to preserve its confidential nature and so as not to constitute a breach of this Agreement. The Recipient will provide prompt written notice of such disclosure to the extent practicable and legally permissible to the Discloser so that the Discloser may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. If such protective order or other remedy is not obtained, or if the Discloser waives compliance with the provisions hereof, the Recipient or its Representatives shall furnish only that portion of the Confidential Material which the Recipient is advised by opinion of counsel is legally required and the Recipient shall exercise reasonable efforts to obtain an order or other assurance that confidential treatment will be accorded such Confidential Material.
- Safekeeping of Confidential Material. The Recipient will keep the Confidential Material safe, in a secure place and under the Recipient’s effective control. The Recipient will not make any copies, notes or records of the Confidential Material, other than for the purposes of supplying the same to the persons mentioned in Paragraph 3 above, and will take reasonable efforts to ensure that all such copies, notes or records are clearly marked as being confidential to the Discloser.
- Return of Confidential Material. If the Discloser so requests, the Recipient shall promptly destroy or return to the Discloser all written Confidential Material and any other written material containing or reflecting any information in the Confidential Material (whether prepared by the Discloser, its advisors or otherwise) and will not retain any copies, extracts or other reproductions in whole or in part of such written material. All documents, memoranda, notes and other writings whatsoever prepared by the Recipient or its Representatives based on the information in the Confidential Material shall be destroyed, and such destruction shall be certified in writing to the Discloser by an authorized officer of the Recipient supervising such destruction except for such internal memoranda prepared by the Recipient which the Recipient deems to be part of its corporate records. All oral Confidential Material will be held by the Recipient and its Representatives in strict confidence, and shall continue to be subject to the terms of this Agreement. The Parties acknowledge that after destruction of documents, copies thereof may continue to exist on back-up tapes or similar systems, and the Recipient will take reasonable efforts to ensure that all such copies are clearly marked as being confidential to the Discloser.
- Breach. The Recipient shall be responsible for any breach of this Agreement by itself or its Representatives and hereby assumes all liability for damages relating to or arising out of the unauthorized use or disclosure of the Confidential Material by itself or its Representatives.
- Rights in Confidential Material. The Recipient shall not acquire any intellectual property or other proprietary rights in the Confidential Material.
- Binding Nature of Agreement; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties hereto and their Representatives and their respective successors and permitted assigns, provided, however, that neither this Agreement nor any of the rights, interests and obligations hereunder shall be assigned by the Recipient. The individuals signing this Agreement represent that they are duly authorized representatives of the Parties and are authorized to execute this Agreement on behalf of and to bind the Parties to the terms of this Agreement.
- Term. The provisions of Paragraphs 1, 2, 3, 4, 5 and 6 shall survive until the earlier of one (1) year from (i) the date of the final termination of the negotiation of the Transaction or (ii) the date of execution of final documents reflecting the consummation of the Transaction.
- No Obligation for Future Agreement. The disclosure of any Confidential Material by Discloser to a Recipient shall not result in any obligation of any Party to enter into any Transaction or any future agreement relating to such Confidential Material, or to undertake any other obligation not set forth in a written agreement signed by the Parties thereto.
- No Waiver. No failure or delay by the Discloser in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
- Relief. Recipient acknowledges and agrees that in the event of any breach by Recipient of Recipient’s obligations herein that Discloser will be entitled to obtain any and all damages that Discloser is entitled to receive pursuant to law, including, but not limited to, actual damages, punitive damages and recovery of reasonable attorney’s fees. Notwithstanding the above Recipient acknowledges and agrees that money damages may not be a sufficient remedy for a breach of this Agreement and that the Discloser shall also be entitled to seek and obtain equitable relief, including an injunction and specific performance, in the event of any breach of the provisions of this Agreement, in addition to all other remedies available to the Discloser at law or at equity. The Recipient consents to the issuance of any such injunction without the necessity of filing a bond or undertaking by Discloser.
- Notification Under Federal Defend Trade Secrets Act. Notwithstanding anything to the contrary contained herein, an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order.
- Amendments. No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and signed by each Party.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof. The Parties acknowledge that they are independent contractors under this Agreement and that no third party is a beneficiary of this Agreement.
- Governing Law; Severability; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts made and to be performed within such State, without giving effect to its conflict of laws principles or rules. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the Parties set forth in this Agreement. In the event that any suit, action or legal proceeding shall be instituted against any Party in connection with this Agreement, each Party hereby submits to the jurisdiction of either the United States District Court for Wilmington, Delaware or any Delaware State Court of competent jurisdiction, and further agrees to comply with all the requirements necessary to give such court jurisdiction.
- Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which will constitute one and the same instrument.
Policy Last Updated: October, 2021