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GROUP PURCHASING AGREEMENT
Capstone is a group purchasing organization that enters into arrangements with numerous Suppliers to make Covered Items available to its members at a negotiated rate and Member wishes to become a member of Capstone in order to access the Covered Items at the negotiated terms and conditions.
1.) Purchasing Alliance. Member agrees for Capstone to act as Member’s purchasing alliance in negotiating and entering into Supplier Agreements. “Supplier Agreement” shall be defined as an agreement between Capstone and a Supplier that sets forth the terms and conditions related to the sale of Covered Items by Supplier to Capstone Members.
2.) Member’s Representations and Responsibilities. In addition to the rights and obligations of Member provided for elsewhere in this Agreement, Member agrees to appoint a representative to meet with Capstone team members or committee meetings as identified.
3.) Member Data and Price Activation. By signing below Member authorizes Capstone to obtain from your suppliers/distributors usage reports and contract connection reports related to Member’s relationship with Suppliers. You are also authorizing Capstone to Price Activate contracts for the the products you are currently using or contracts you shall use in the future, where applicable.
4.) Supplier Agreements. Nothing in this Agreement or in any Supplier Agreement shall in any way obligate Member to purchase Covered Items from a Supplier. Where Member chooses to purchase Covered Items from a Supplier under a Supplier Agreement, Member shall comply with the terms and conditions of the Supplier Agreement.
5.) Supplier Fees. Member understands and agrees that Capstone may receive fees from Suppliers (“Administrative Fees”) under certain Supplier Agreements. Unless otherwise disclosed to Member, such Supplier Fees will be fixed at three percent (3%) or less of the purchase price of the Covered Items in the Supplier Agreement and shall belong to Capstone only. On an annual basis, and in accordance with the group purchasing organization safe harbor (42 C.F.R. § 1001.952(j)), Capstone shall provide Member written notice of the amount of administrative fees received from suppliers with respect to purchases made by or on behalf of Member.
6.) Term and Termination. The term of this Agreement shall commence on the date of Member Signature and continue indefinitely. However, either party may terminate this Agreement at any time, for any reason or no reason, upon sixty (60) days prior written notice to the other party provided, that, in the event of such termination, each party shall continue to be responsible for its obligations hereunder through the effective date of termination.
7.) Liability. Neither Party shall be liable to the other Party for any act, or failure to act, in connection with any Supplier Agreement, including but not limited to any failure of a Supplier to furnish the Covered Items that a Supplier has agreed to furnish under any Supplier Agreement. Member shall be solely liable to make any payments for goods, services, and taxes due under its contracts with Suppliers. This provision shall survive the termination of this Agreement.
8.) Confidential Information. For purposes of this Agreement, “Confidential Information” means information relating to the prices of any Covered Items in any Supplier Agreements, and any Capstone programs, services and arrangements of a proprietary or sensitive nature not readily available through sources in the public domain. Member shall keep Confidential Information strictly confidential and hold such Confidential Information in trust; Member shall not use Confidential Information for any purpose other than to effectuate the purposes of this Agreement; and Member shall not disclose Confidential Information to any third party without Capstone’s prior written consent. Member acknowledges that Capstone’s remedies at law for any breach of this provision would be inadequate and agrees that in the event of Member’s breach of any provision of this Paragraph 9, Capstone shall be entitled to appropriate equitable relief, including, but not limited to injunctive relief, which remedy shall be non-exclusive.
9.) Indemnification. Both Member and Capstone hereby covenant to defend and indemnify each other and hold each other harmless against and from all claims, losses, damages, tax liability, and costs, including, but not limited to, attorney’s fees and expenses, asserted against, sustained, or incurred by Member or Capstone by any person, entity, or governmental authority in connection with any wrongful act, omission or breach of any representation, warranty, or obligation by Member or Capstone. This provision shall survive the termination of this Agreement.
10.) Warranties. Member understands and acknowledges that Capstone is performing a service and is not a party to any purchase and/or sale of any Covered Items between the Member and any Supplier. Accordingly, Member acknowledges and agrees that Capstone makes no representation or warranty, express or implied, as to any manner whatsoever, specifically including, without limitation, merchantability or fitness for a particular purpose of any Covered Item purchased by Member through a Supplier Agreement. Additionally, Member acknowledges and agrees that Capstone shall have no liability whatsoever for personal injury, product damage or lost profit caused by, or related to any Covered Item purchased pursuant to a Supplier Agreement and covenants to defend and indemnify Capstone and hold it harmless against and from all claims, losses, damages, and costs, including, but not limited to, attorney’s fees and expenses, asserted against, sustained, or incurred by Capstone by any person, entity, or governmental authority in connection with any Covered Item. This provision shall survive the termination of this Agreement.
11.) Governing Law. This Agreement shall be governed by and enforced under the laws of the State of North Carolina, determined without reference to conflict of laws principles, and the state and federal courts located in Buncombe County, North Carolina shall have sole and exclusive jurisdiction.
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