Mercantile GPO Participation Agreement
This Mercantile GPO Participation Agreement (the “Agreement”) governs your participation in the GPO program that is made available to you (“Member”) by Mercantile Financial Technologies,Inc. (“Mercantile”). Mercantile and Member will each be referred to individually herein as a“Party” and together as the “Parties.”
If you are entering into this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement.
BY CLICKING “I AGREE,” OR OTHERWISE MANIFESTING ASSENT TO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND AGREE TOBE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU MAY NOT PARTICIPATE IN THE MERCANTILE GPO PROGRAM.
Mercantile may change the terms and conditions of this Agreement from time to time. The most current terms and conditions will be posted on our website at https://www.getmercantile.com/legal/vendor-offers. Your use of Vendor Contracts after the date of any updated Agreement on our website constitutes your agreement with such updated terms and conditions. If the modified Agreement is not acceptable to you, your only recourse is to cease participation in our GPO program.
RECITALS:
Mercantile is a group purchasing organization (“GPO”), which negotiates and enters into purchasing agreements (the “Vendor Contracts”) with manufacturers and distributors of goods and services (the “Contracted Vendors”) for the benefit of its members; and
Member wishes to purchase goods and services from the Contracted Vendors pursuant to the Vendor Contracts.
The Parties hereby agree as follows:
1. MEMBERSHIP
Mercantile shall furnish GPO services to Member. Mercantile may also brand Mercantile’s GPO program and make it available to its members. Mercantile shall negotiate and enter into Vendor Contracts as Mercantile determines in its sole discretion. From time to time during the Term of this Agreement, Mercantile shall make available to Member a list of the Contracted Vendors and Member may, at its sole discretion, purchase goods and services from the Contracted Vendors subject to the terms and conditions of the applicable Vendor Contracts. Subject to the terms and conditions set forth in this Agreement, Member hereby engages Mercantile to act as its non-exclusive group purchasing agent, to: (i) negotiate the terms of and enter into Vendor Contracts, and to cancel, amend or modify any Vendor Contracts as it deems necessary, advisable or appropriate; (ii) receive from Contracted Vendors data relating to purchases of goods and services under Vendor Contracts by Member and (iii) share in any administrative and other fees arising from any purchases made by Member pursuant to any Vendor Contract. Notwithstanding the foregoing, this engagement shall be contingent upon the Member’s proper and timely completion of any necessary enrollment forms, declaration documents or any other documents requested to be completed by Mercantile in connection with this Agreement. Nothing in any Vendor Contract shall, in any way, obligate Member to purchase, license or lease any goods, or services from Contracted Vendors. Mercantile will negotiate on behalf of our members but does not guarantee specific savings associated with Vendor Contracts.
2. AUTOMATIC ENROLLMENT:
Member’s participation in the negotiated Vendor Contracts is automatic upon accepting these Terms. Member acknowledges and agrees that your account transactions may reflect the negotiated savings without requiring separate consent for each transaction.
3. CONFIDENTIALITY
3.1. Definition of Confidential Information. “Confidential Information” means any confidential or other proprietary information that is disclosed by or on behalf of one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement, whether disclosed orally, in writing or in any other form, including without limitation, business and marketing plans, strategies, sales, processes, techniques, trade secrets, know how, inventions, processes (business, technical, or other), designs, algorithms, source code, customer lists, the terms of this Agreement and the proposed and actual Vendor Contract prices and terms and conditions. Confidential Information does not include information or data which is: (i) known to the Receiving Party prior to its receipt from the Disclosing Party without a limitation or obligation of confidentiality under another agreement; (ii) independently developed by the Receiving Party without use of any Confidential Information; (iii) generally known to the public at the time of disclosure other than as a result of disclosure by the Receiving Party; (iv) received from a third party with a legal or contractual right to disclose such information or data; (v) authorized for use by the Disclosing Party and outlined in a separate agreement. Nothing herein shall prevent or restrict Mercantile from using the data provided by Member on an aggregated basis.
3.2. Use and Disclosure of Confidential Information. The Receiving Party shall, with respect to any Confidential Information of the Disclosing Party: (i) use such Confidential Information only in connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; (ii) subject to Section 2.4 below, restrict disclosure of such Confidential Information within the Receiving Party’s organization to only those employees and consultants (“Personnel”) of the Receiving Party who have a need to know such Confidential Information in connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; and (iii) except as expressly contemplated under the preceding clause (ii), not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so.
3.3. Protection of Confidential Information. The Receiving Party shall protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).
3.4. Compliance by Personnel. The Receiving Party shall, prior to providing any Personnel access to any Confidential Information of the Disclosing Party, inform such Personnel of the confidential nature of such Confidential Information and require such Personnel to comply with the Receiving Party’s obligations hereunder with respect to such Confidential Information. The Receiving Party shall be responsible to the Disclosing Party for any violation of this Section 2 by any such Personnel.
3.5. Required Disclosures. In the event the Receiving Party becomes or may become legally compelled to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use commercially reasonable efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
3.6. Irreparable Injury. Each Party acknowledges that the other Party may be irreparably harmed by any breach of this Section, and agrees that such other Party may seek, in any court of appropriate jurisdiction, an injunction and/or any other equitable relief necessary to prevent or cure any such actual or threatened breach thereof, without the necessity of proving monetary damages or posting a bond or other security. The preceding sentence shall in no way limit any other legal or equitable remedy, including monetary damages, the non-breaching Party would otherwise have under or with regard to this Agreement.
4. MEMBER OBLIGATIONS
4.1. Vendor Contract Participation. Member shall comply with all terms and conditions of the Vendor Contracts, including without limitation, payment terms and compliance levels. Mercantile will facilitate processes for Member to notify Contracted Vendors of decisions to participate in and purchase under Vendor Contracts. Each Contracted Vendor will determine Member’s eligibility to purchase under a Vendor Contract, and Member will purchase goods and services directly from the applicable Contracted Vendor or the designated distributor under each Vendor Contract in which Member elects to participate. Member will also execute separate agreements or acknowledgements as reasonably requested by Mercantile or any particular Contracted Vendor evidencing such Member’s participation in this GPO program and agreement to comply with the terms of this Agreement and the relevant Vendor Contracts. Member will be solely responsible for product payments and compliance with all other obligations in Member’s capacity as the purchaser under each such Vendor Contract. Accordingly, Member hereby releases and holds harmless Mercantile from any liability or claims whatsoever with respect to such actions and obligations of Member and the Contracted Vendors.
4.2. Anti-Kickback Compliance. 42 C.F.R. § 1001.952(h) sets forth the discount “safe harbor” regulation of the federal Anti-Kickback Statute 42 U.S.C. § 1320a-7b(b). With respect to its purchases under Vendor Contracts or Contracted Vendor rebates it receives from Mercantile or directly from Contracted Vendors, Member agrees to comply with the terms of § 1001.952(h)(1), as it may be amended from time to time, and acknowledges notice of this regulation’s reporting and information provision obligations. Accordingly, Member hereby releases and holds harmless Mercantile from any liability or claims whatsoever with respect to such actions and obligations of Member with regard to the discount safe harbor.
4.3. Records. Member will maintain all information related to its performance under this Agreement, including but not limited to, spend reports, in a current, detailed, organized and comprehensive manner and in accordance with customary industry practice and applicable law (“Member Records”). Upon Mercantile’s request, Member will provide such Member Records to Mercantile.
4.4. Member Representations. Member represents, warrants and covenants that Member will: (i) comply with all terms and conditions of this Agreement, (ii) comply with all terms and conditions of the Vendor Contracts (and any local supplements or other contracts between Member and Contracted Vendors or third parties relating to the Vendor Contracts), that are consistent with Member’s obligations under applicable law, (iii) remain duly licensed under applicable state law to engage in Member’s business; (iv) comply with all laws, rules and regulations applicable to its performance under this Agreement, including but not limited to, any disclosure requirements related to incentives, or other remuneration it received under this Agreement; and (v) execute separate agreements or acknowledgements as requested by Mercantile or any particular Covered Vendor evidencing Member’s agreement to comply with the terms of the relevant Vendor Contracts.
5. FEES
5.1. Administrative Fees. Mercantile is a GPO that is structured to be exempt or to comply with the requirements of the “safe harbor” regulations regarding payments to group purchasing organizations set forth in 42 C.F.R. § 1001.952(j), as applicable, depending on the applicable services. Mercantile shall have the right to receive an administrative fee formulated in the manner set forth in this Section below.
5.2. Administrative Fees Paid by Contracted Vendors. At its option, Mercantile may charge a Contracted Vendor an administrative fee that equals a percentage of the purchase price of the products or services sold to the Member under the applicable Vendor Contract (the “GPO Fee”), but only in accordance with the following:
5.2.1. Mercantile may receive from a Contracted Vendor a fee equal to three percent (3%) or less of the purchase price of the products or services provided by that Contracted Vendor to Member. If the fee to be paid by a Contracted Vendor is greater than three percent (3%), Mercantile’s agreement with the Contracted Vendor shall specify the amount of such fees and Mercantile shall give Member access to a list of all such fees, which shall be updated by Mercantile or an authorized agent of Mercantile, from time to time.
5.2.2. Mercantile will disclose to Member in writing at least annually, and to the Secretary of the United States Department of Health and Human Services upon his or her request, the amount it received from each Contracted Vendor with respect to purchases made by or on behalf of Member.
5.3. Other Fees Paid by Contracted Vendors. At its option, Mercantile may charge a Contracted Vendor fees in addition to the administrative fees described in this Section of this Agreement, for marketing or other services rendered by Mercantile that are separate and distinct from group purchasing services hereunder.
6. REWARDS
6.1. Vendor contract rewards. Member may earn rewards calculated as a percentage of qualified purchases on Vendor Contracts. Each Vendor Contract will have a unique reward as outlined on the Mercantile vendor offer portal. Members can redeem rewards online by logging into the Member dashboard. Rewards can be redeemed as a check. Member may view the Member dashboard for additional ways to redeem points. Member will not earn rewards on disputed or fraudulent transactions. If Member originally earned rewards on such transactions, the rewards will be reversed. Member will not earn rewards for returned items, account adjustments, or if Member receives credit back from a merchant or service provider. Mercantile will reverse the reward that is associated with the return, credit, or adjustment. Member will not earn rewards if account is closed or in default.
7. TERM AND TERMINATION
7.1. Term. The term of this Agreement will commence on the date Member accepts this Agreement and shall remain in full force and effect, unless terminated in accordance with the terms of this Agreement.
7.2. Termination for Breach. If a Party to this Agreement commits a material breach of this Agreement or a Vendor Contract, the non-breaching Party will be entitled to terminate this Agreement in accordance with the following: (i) the non-breaching Party will give the breaching Party written notice of such breach; (ii) the breaching Party will have thirty (30) days from the receipt of such notice to cure such breach; and (iii) in the event the breaching Party fails to cure such breach, the non-breaching Party will be entitled to terminate the Agreement as of the end of such thirty (30) day period. Provided, however, if the non-breaching Party determines in its reasonable discretion that the breach is not curable, then the non-breaching Party may terminate the Agreement any time after giving written notice.
7.3. Termination for Convenience. Either Party may terminate this Agreement without cause upon thirty (30) days prior written notice to the other Party.
7.4. Termination by Mercantile. Mercantile may also terminate this Agreement immediately with written notice to Member in the event that Mercantile determines, in its sole discretion, that a) Member does not meet the minimum requirements for membership in the group purchasing organization; or b) if continuation of this Agreement may be detrimental to the operations of Mercantile or the other members.
8. DISCLAIMER OF WARRANTIES
MECANTILE MAKES NO GUARANTEES AS TO MEMBER’S EXPERIENCE OR SATISFACTION WITH ANY CONTRACTED VENDOR AND MAKES NO REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE GOODS OR SERVICES TO BE PROVIDED BY A CONTRACTED VENDOR HEREUNDER, WHETHER EXPRESS OR IMPLIED, AND INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT AGAINST ANY THIRD PARTY PATENT OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY, AND ANY WARRANTY ARISING OUT OF PRIOR COURSE OF DEALING OR USAGE OF TRADE. WHILE MERCANTILE USES REASONABLE EFFORTS TO ENSURE THAT THE PRICING, PRODUCT INFORMATION AND OTHER INFORMATION AVAILABLE TO MEMBER THROUGH ITS TECHNOLOGY APPLICATIONS IS CURRENT AND ACCURATE, MERCANTILE CAN NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF IT.
9. INDEMNIFICATION
9.1. Indemnification by Member. Member shall defend, indemnify and hold harmless Mercantile, its affiliates, and its and their respective members, agents, officers, directors and employees (the “Mercantile Indemnitees”) from and against any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) (collective, “Losses”) incurred by any such Mercantile Indemnitee in connection with any third party claim, action or proceeding (each, a “Claim”) arising from any breach of this Agreement and/or the applicable Vendor Contracts, including without limitation, any claims resulting from a failure to pay for any goods and services purchased by Member.
9.2. Indemnification by Mercantile. Mercantile shall defend, indemnify and hold harmless Member, its agents, officers, directors and employees (the “Member Indemnitees”) from and against any and all Losses incurred by any such Member Indemnitee in connection with any Claim arising from Mercantile’s gross negligence or willful misconduct in performance of its obligations under this Agreement.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL MERCANTILE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REGARDLESS OF THE FORM OF ACTION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE OR OTHERWISE. THE ENTIRE LIABILITY OF MERCANTILE FOR ANY ACTION, CLAIM OR CAUSE OF ACTION WHATSOEVER, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, WARRANTY, TORT, NEGLIGENCE OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE ADMININSTRATIVE FEES RECEIVED BY MERCANTILE FROM CONTRACTED VENDORS THAT RESULTED FROM MEMBER’S PURCHASES UNDER VENDOR CONTRACTS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE ON WHICH THE CLAIM ARISES.
11. MISCELLANEOUS
11.1. Notices. Unless otherwise specified herein, all notices and other communications between the Parties (other than routine operational communications) required or permitted by this Agreement or by Applicable Law, will be deemed properly given, if given by: (i) personal service; (ii) registered or certified mail, postage prepaid, return receipt requested; or (iii) nationally or internationally recognized private courier service to the respective addresses of the Parties set forth above or such other address as the respective Parties may designate by like notice from time to time. Notices so given shall be effective upon: (a) receipt by the Party to which notice is given; or (b) on the fifth (5th) business day following mailing, whichever occurs first.
11.2. Relationship of the Parties. Each Party is an independent contractor of the other Party. Nothing herein shall constitute a partnership between or joint venture by the Parties, or constitute either Party the agent of the other.
11.3. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that Mercantile may, upon written notice to Member and without the consent of Member, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
11.4. Publicity. Except as required by Applicable Law, neither Party shall make any public statement, press release, presentation, or other announcement relating to the existence or terms of this Agreement without the prior written consent of the other Party.
11.5. Force Majeure. Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement to the extent such failure or delay or both is caused, directly or indirectly, without fault by such Party, by any reason beyond its reasonable control, including but not limited to, fire, flood, earthquake, elements of nature or acts of God, acts of state, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, quarantines, embargoes, failure or termination of Third-Party Items, and other similar governmental action (each a “Force Majeure Event”). Any Party so delayed in its performance will promptly notify the other by telephone or by the most timely means otherwise available (to be confirmed in writing within two (2) business days of the inception of such delay) and describe in reasonable detail the circumstances causing such delay. In such event, the performance times shall be extended for a period of time equivalent to the time lost because of the excusable delay; provided, however, if the delay or failure continues for more than thirty (30) days, the Party not relying on the excusable delay may terminate this Agreement upon written notice to the other Party. In order to avail itself of the relief provided in this Section, a Party must use commercially reasonable efforts to remedy the cause of, or to mitigate or overcome, such delay or failure.
11.6. Governing Law, Venue. The validity, interpretation, and performance of this Agreement shall be governed by the laws of the State of New York without giving effect to the conflicts of laws provisions thereof. Any disputes, controversies, or claims in connection with or arising out of this Agreement, its negotiation, breach, existence, validity, or termination, shall proceed in a federal or state court located, in the Borough of Manhattan, New York. Each Party hereby irrevocably submits to the exclusive jurisdiction of such courts. Each Party irrevocably waives, to the fullest extent permitted by Applicable Law, any objection to the laying of venue in such courts of any legal action or proceeding arising out of or relating to this Agreement and any claim that any such action or proceeding has been brought in an inconvenient forum. Service of process shall be made in any manner allowed by Applicable Law.
11.7. No Waiver. The rights and remedies of the Parties to this Agreement are cumulative and not alternative. No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged. Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege shall preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
11.8. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties’ intent.
11.9. Entire Agreement. This Agreement together with all Recitals contain the entire understanding of the Parties with respect to the subject matter hereof and supersede all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms, or conditions, and neither Party has relied upon any representation, express or implied, not contained in this Agreement.
11.10. Counterparts. This Agreement may be executed in counterparts (which may be exchanged by fax or PDF), each of which shall be deemed an original, but all of which together shall constitute the same Agreement.
Last updated: 08/2024
