1. Definitions. As used herein, the following terms have the following meanings:
(a) “Facility” or “Facilities” means the Member facilities identified in the
application set forth on page -1- above, which will be purchasing products and services under Vendor Contracts
negotiated by Infinity.
(b) “Program” means the group purchasing program conducted by
Infinity, pursuant to which Member and its Facilities are provided access to the Vendor Contracts.
(c) “Vendor Contacts” means the purchasing agreements between
Vendor and Infinity for the purchase of products and services, and any agreements between Vendor and third
parties that have agreed that Infinity members may purchase under such agreements.
(d) “Vendor” or “Vendors” means the supplier(s) of products and services
under the Vendor Contracts.
2. GPO Fees. Member acknowledges (i) that Infinity will receive payment of fees for administrative
and other services provided by Infinity from one or more Vendors based on products and services purchased,
licensed or leased by Member and its Facilities (“GPO Fees”), and (ii) that the percentage of the GPO Fees will be
three percent (3%) or less. Infinity may receive additional GPO Fees from Vendors, the payment of which is based
on the products and services purchased by Infinity Members collectively which, when added to the GPO Fees
earned based on the Members’ and its Facilities’ individual purchases, may exceed three percent (3%). Infinity
does not know whether it will receive such additional GPO Fees. Infinity will report to the Member, in writing, on a
basis not less frequently than annually according to GPO requirements, and to the Secretary of Health and Human
Services, when applicable or requested, the amount received from the Vendors with respect to purchases made by
or on behalf of Member.
3. Anti-Kickback and Safe Harbor (for organizations accepting Medicare and Medicaid). It is the
intent of the parties to establish a business relationship that complies with the Medicare and Medicaid
antikickback statute. The parties agree that, for the purposes of this Agreement, Infinity is acting as a group
purchasing organization and the parties believe that this Agreement satisfies the requirements for a written
agreement under the group purchasing organizations safe harbor laws.
4. Purchase of Products and Services.
(a) Subject to the terms and conditions set forth in this Agreement,
Member hereby engages Infinity 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 there under for use by Member and its Facilities. Nothing in this Agreement shall require Member to
purchase anything or to purchase the products and services exclusively from Vendors to the exclusion of any other
vendor of those products and services unless Member agrees to specific terms of a contract with a Vendor that
requires such written agreement. Members sign individual Vendor contracts when they choose to participate with
Vendors that require such a written agreement. Member hereby authorizes Infinity, 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 Vendors, distributors, and e-commerce
companies, data relating to purchases of products and services under Vendor Contracts by Member and its
(b) The Facilities identified in Member’s application shall have access to
the Program, except that, if any Facility identified on the application is (i) not under the direct ownership of
Member, or (ii) Member is not responsible for and authorized to bind it to this Agreement, then, in such instance,
any such Facility shall execute and deliver to Infinity a Membership Agreement prior to being granted access to the
5. Infinity Disclaimer and Member Release. INFINITY DOES NOT MAKE AND EXPRESSLY DISCLAIMS,
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSES, 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 INFINITY FROM ANY AND ALL LIABILITY AND CLAIMS RELATING TO THE
PRODUCTS AND SERVICES, AND ANY BREACH OR ALLEGED BREACH OF WARRANTY IN COMMENCTION WITH THE
PRODUCTS AND SERVICES.
6. Term and Termination.
(a) Subject to termination under subparts (b) and (c) hereof, the term of
shall be for a period of one (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 thirty
(30) days prior to the end of the initial term or any subsequent renewal term.
(b) Member has the right to cancel membership at any time with a 30-day
(c) Infinity may terminate this Agreement on thirty (30) 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; provided, however, that
Infinity may terminate this Agreement in the event of a breach described above only if Infinity shall have given
Member written notice of the specifics of the breach and Member shall not have cured such breach or caused such
breach to be cured within fifteen (15) days thereafter. Infinity shall also have the right to terminate this Agreement
upon (60) sixty 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 or in the event that more
than 49% of Member equity (capital stock or membership units) or the equity (capital stock or membership units)
of its ultimate parent or any such permitted assignee is transferred to an independent third party entity.
7. Representations, Warranties and Covenants of Members. Member, for itself and for each other
of its Facilities that purchase under the Vendor Contracts, whether or not specifically set forth herein, covenants
with Infinity as follows:
(a) Member and its Facilities shall indemnify and hold Infinity, its
respective affiliates, members, officers, employees and agent (the “Indemnitees”) harmless from and against any
and against all losses, liabilities, damages, costs and expenses (whatsoever, including, without limitation,
reasonable attorney’s fees) that are awarded against or incurred after the date hereof by any of them, relating to
acts or omissions of Member and/or Facilities which relate in any way to this Agreement, including, without
limitation, any claims resulting from a failure to pay for any products and services purchased by Member or any of
(b) 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 (iii) to execute separate agreements
or acknowledgements as requested by Infinity or any particular Vendor evidencing such Facility’s
agreements to comply with the terms of the relevant Vendor Contract.
(c) Member warrants that all products and services purchased by it or its
Facilities under the Vendor Contracts will be for use by the Member or its Facilities, and not for resale or
distribution to third parties.
(d) Member warrants that all Facilities listed herein are owned by Member
and furnish services to third parties for whom payment may be made in whole or in part under Medicare or state
8. Assignment. Member rights and obligations under this Agreement are not assignable without the
prior written consent of Infinity.
9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws
of the State of Texas, without regard to the conflicts of laws principles thereof.
10. Severability. To the extent that any provision herein, or part thereof, is held to be invalid, illegal
or unenforceable by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of the remaining provisions of this Agreement.
11. Entire Agreement. This Agreement, which includes the application (at page -1-) and any additional
location sheets supplementing the application, as may be required, contains the entire understanding of the
parties, and supersedes all previous oral agreements and discussions, with respect to the subject matter set forth
12. Counterparts; Facsimile or Electronic Signatures. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the
same instrument. Copies of signatures sent by facsimile transmission or provided electronically in portable
document format (“PDF”) shall be deemed to be originals for purposes of execution and proof of this Agreement.
Signature and Certification
By submitting the application information and signing this Agreement, Applicant agrees to enroll as a Member of
Infinity, and to permit Infinity to negotiate and administer certain purchasing agreement on its behalf. If the
Member is an entity that is a health care provider of services, Infinity shall disclose in writing to the entity, at least
annually, the fee received from each Vendor with respect to purchases made by and on behalf of that entity.