Terms and Conditions

This Membership Agreement (the “Agreement”) effective from the date of being submitted online is between Fairway GPO and the undersigned member (the “Member”) for the purposes of permitting Member and its facilities to obtain certain products and services under Vendor Contracts between Fairway GPO and Vendors. Subject to termination under Section 3 hereof, the term of this Agreement shall be for a period of 1 year commencing on the Effective Date, with automatic renewals thereafter for terms of one (1) year each unless either party gives written notice of non-renewal of this Agreement at least (90) days prior to the end of the initial term or any subsequent renewal term. Member has the right to cancel membership at any time with a 30 day notice.

Definitions, as used herein, the following terms have the following meanings:

Engagement

Subject to the terms and conditions set forth in this Agreement, Member hereby engages Fairway GPO/Innovatix/Essensa to act as its independent group purchasing organization and is hereby granted access to the Vendor Contracts pursuant to which Member and its Facilities may purchase products and services available hereunder for use by Member and its Facilities. Member hereby authorizes Fairway GPO, as its agent for such purposes, to (i) negotiate the terms of and enter into Vendor Contracts, and to cancel or modify any Vendor Contracts as it deems necessary, advisable or appropriate; and (ii) receive from Vendor, distributors, and e-commerce companies, data relating to purchases of products and services under Vendor Contracts by Member and its Facilities.

Member agrees to and shall keep Fairway GPO advised, in writing, of any material changes pertaining to the following:
any change in ownership of Member or any Facility;
any change in address of Member or any Facility;

Compliance with Laws

The parties shall comply with all applicable federal, state and local laws and regulations (“Applicable Laws”). It is the intent of the parties that this arrangement comply with all Applicable Laws including without limitation, the federal Anti-Kickback Statute, set forth in 42 U.S.C. 1320a-7b(b) and the statutory exceptions applicable to group purchasing organization and discount arrangements and, further, that this arrangement satisfy each of the group purchasing organizations safe harbor regulation set forth in 42 C.F.R. 1001.952(j) and discounts safe harbor regulation set forth in 42 C.F.R. 1001.952(h). Administrative Fees

GPO Fees. Member acknowledges that (i) Fairway GPO will receive payment of administrative fees from the Vendors (“GPO Fees”), administrative and other services provided by Fairway GPO, based on products and services purchased, licensed or leased by Member and its Facilities; and (ii) the dollar amount of GPO Fees received by Fairway GPO from its Vendors will be up to three percent (3%) of the dollar amount of purchases made by Member and its Facilities under the Vendor Contracts.

Termination

Fairway GPO may terminate this Agreement on ninety (90) days’ notice to Member if (i) Member or any of its Facilities fails to comply with the terms and conditions of any of the Vendor Contracts, or (ii) Member or any of its Facilities otherwise breaches any provision of this Agreement and Member fails to cure such breach within fifteen (15) days after notice of such breach.

Fairway GPO shall also have the right to terminate this Agreement upon ninety (90) days’ prior notice upon the transfer, directly or indirectly, by sale, merger or otherwise, of substantially all of the assets of Member or its ultimate parent or any permitted assignee (upon assignment to such assignee) or in the event that more than 49% of Member capital stock or the capital stock of its ultimate parent or any such permitted assignee is transferred to an independent third party entity.

Member may terminate this Agreement on thirty (30) days’ notice to Fairway GPO.

Member and Confidentiality

Member and Facilities shall treat as confidential (and not use or disclose except in connection with its obligations under this Agreement) Fairway GPO’s proprietary and confidential information (including the terms of this Agreement). Upon termination, Member shall return to Fairway GPO all such confidential information.

Fairway GPO Disclaimer and Member Release

FAIRWAY GPO DOES NOT MAKE AND EXPRESSLY DISCLAIMS, ANY WARRANTY OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, AS TO ANY PRODUCTS AND SERVICES SOLD BY ANY VENDOR; AND MEMBER AND ITS FACILITIES HEREBY EXPRESSLY RELEASE FAIRWAY GPO FROM ANY AND ALL LIABILITY AND CLAIMS RELATING TO THE PRODUCTS AND SERVICES, AND ANY BREACH OR ALLEGED BREACH OF WARRANTY IN CONNECTION WITH THE PRODUCTS AND SERVICES.

Representations, Warranties and Covenants of Member

Member, for itself and for each of its Facilities that purchase products and services under the Vendor Contracts hereby covenants with Fairway GPO as follows:

Member and its Facilities shall indemnify and hold harmless Fairway GPO, its respective affiliates, agents, officers, directors and employees from and against any and all losses, liabilities, damages, costs and expenses (whatsoever, including, without limitation, reasonable attorney’s fees), suffered or incurred by Fairway GPO, Member, or Facilities, resulting from or in any way connected with Member’s and/or Facilities’ acts or omissions, negligence or willful misconduct; breach of this Agreement; or any claims resulting from a failure to pay for any products and services purchased by Member or any of its Facilities.

Member agrees to cause each of its Facilities (i) to comply with all terms of this Agreement as if a party hereto, (ii) to comply with all terms of the Vendor Contracts including without limitation, payment terms and own use requirements and (iii) to execute separate agreements or acknowledgements as requested by Fairway GPO or any particular Vendor evidencing such Facility’s agreement to comply with the terms of relevant Vendor Contract.

Member warrants that all products and services purchased by it or its facilities under the Vendor Contracts will be for its own use by the Member or Facilities, and not for resale or distribution to third parties.