TERMS AND CONDITIONS

This agreement (“Agreement”) is between you and/or your company (hereinafter referred to as “Member”) and Procurement Concepts, LLC, an Illinois Limited Liability Company (hereinafter referred to as “Procurement Concepts”).

 

RECITALS

 

Whereas Procurement Concepts has entered into contracts with multiple vendors (each a “Consortium Vendor”) for a variety of office-related products and business support services (collectively “Products”).

 

Whereas Procurement Concepts has developed a group purchasing program (the “Program”) and organized a group of small to mid-size companies and other business organizations (the “Group Purchasing Organization”), and

 

Whereas Procurement Concepts uses the aggregate purchasing potential of the group to leverage more value added services and favorable pricing from Consortium Vendors, and

 

Whereas Member desires to join the Group Purchasing Organization as a member and to utilize the services, skills, and expertise of Procurement Concepts, and participate in the Program in order to lower its costs of various goods and services.

 

Now, therefore, in consideration of the mutual promises contained herein, the parties agree as follows:

 

1) MEMBERSHIP

 

a) Membership to the Group Purchasing Organization is open to all small to mid-size companies and other business organizations. While Member is not required to purchase any of Products within the Program, Member agrees that any purchases made will comply with the terms and conditions of this Agreement and all terms and conditions of any applicable contracts negotiated by Procurement Concepts with the Consortium Vendors supplying the Products under the Program (each a “Consortium Vendor Contract”).

 

b) Members shall have the option to leverage the discounted pricing and other negotiated benefits provided in the Consortium Vendor Contracts by executing an agreement for any or all of the Products in the Program with the Consortium Vendors.

 

2) TERM

 

a) The term of this Agreement shall commence on the Effective Date and shall continue until either party terminates this Agreement.

 

b) Either party may terminate this Agreement for any reason with thirty (30) days prior written notice.

 

c) Upon termination of this Agreement, the obligations of Member and Procurement Concepts to each other shall terminate with the exception of Member’s obligation of confidentiality as set forth in Section 5 herein, which shall continue for a period of 12 months following the termination of this Agreement. In addition, upon termination of this Agreement, Consortium Vendor Contracts that Member has executed shall terminate as well. Procurement Concepts may terminate this Agreement in the event of a breach by Member.

 

d) This agreement is non-exclusive. Member may purchase through Procurement Concepts at will.

 

3) MEMBERSHIP FEES

 

a) There is no cost for the Member to participate in the Program.

 

4) ADMINISTRATIVE FEES

 

a) Incorporated into each Consortium Vendor Contract is a fee (the “Administrative Fee”) that the Consortium Vendor pays to Procurement Concepts for the gross revenues that it receives from the sale of Products to members of the Group Purchasing Organization.

 

5) OTHER SERVICES

 

a) Member acknowledges that Procurement Concepts may offer additional services through the Program that could benefit the Member’s procurement efforts or overall business operations. Any future engagement for such services would be covered in a separate written services agreement.

 

6) WARRANTIES

 

a) Member understands and acknowledges that Procurement Concepts, through the Program, is performing a service and is not a party to any purchase of any Product between the Member and any Consortium Vendor. Accordingly, Member acknowledges and agrees that Procurement Concepts makes no representation or warranty of any kind, express, implied or otherwise with respect to product purchased by Member through the Program. Procurement Concepts specifically disclaims any and all implied warranties, including without limitation, any implied warranties of merchantability and/or fitness for a particular purpose.

 

7) CONFIDENTIALITY

 

a) Use and Protection. The receiving Party agrees to use the Proprietary Information only for the limited purpose of fulfilling its obligations under this Agreement. The Receiving party agrees that it shall hold the Proprietary Information confidential and, unless otherwise provided for herein, not disclose it to any third party. The Receiving Party may disclose Proprietary Information to its Subcontractors, representative, independent contractors, agents, and consultants (collectively, “Nonaffiliated Third Parties”) and to its Affiliates, provided that (a) any Nonaffiliated Third Parties and Affiliates shall be restricted in use and re-disclosure of the Proprietary Information to the same extent as the Receiving Party; and (b) any such Nonaffiliated Third Parties shall have entered into Supplier’s form confidentiality agreement, if applicable, without modification, which shall be no less restrictive than the terms hereof. Each Party represents that it exercises reasonable care to safeguard the Proprietary Information acquired from the Disclosing Party. Such measures shall include, at a minimum, a requirement that all Proprietary Information shall be retained in a secure place with access limited to only such employees, Nonaffiliated Third Parties and/or Affiliates who need access to such Proprietary Information for purposes of this Agreement and that, notwithstanding anything to the contrary herein, each such employee, Nonaffiliated Third Party, and/or Affiliate shall be informed of the existence and terms of this confidentiality provision.

 

b) Liability. Each Party acknowledged that it shall be liable to the other Parties for any breach by its employees, Nonaffiliated Third Parties and/or Affiliates of this Section 7.

 

c) Required Disclosure. In the event that the Receiving Party is required by law to disclose any of the Proprietary Information, the Receiving Party shall (a) give prompt written Notice of such requirement to the Disclosing Party, (b) permit the Disclosing Party to intervene in any relevant proceeding to protect its interests in the Proprietary Information, and (c) provide reasonable cooperation to the Disclosing Party, at the Disclosing Party’s expense, in seeking to obtain such protection. The Receiving Party agrees that if it is required to disclose Proprietary Information, it will (i) furnish only that portion of the Proprietary Information which it in good faith reasonably considers to be legally required, (ii) exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Proprietary Information, and (iii) continue to protect the Proprietary Information as provided herein.

 

d) Personal Data Privacy. The Receiving Party agrees to treat Personal Information in accordance with the provision set forth herein. With respect to Personal Information that is also Proprietary Information, the following obligations shall be in addition to the obligations set forth above (the Parties agreeing that in the event of any conflict, the provision affording the greater protection to the information shall control).

 

8) NOTICES

 

a) All Notices, consents or demands required or permitted to be given or made hereunder by a Party shall be in writing, each, (a “Notice”) except as otherwise expressly provided herein. A Notice shall be deemed to have been given when received or refused, if made by email to membership@procurementconcepts.com or to member email address that was populated during the sign-up process.

 

9) OWNERSHIP OF MATERIALS

 

a. All Proprietary Information, unless otherwise specified in writing, shall remain the property of the Disclosing Party. At the conclusion of the Parties’ relationship, upon written request of the Disclosing Party, the Receiving Party shall either return all Proprietary Information to the Disclosing Party or destroy all Proprietary Information and certify its destruction to the Disclosing Party. Notwithstanding the foregoing, if the Receiving Party is not able to remove the Disclosing Party’s Proprietary Information from its information technology system(s), the Receiving Party may retain such information in said system(s), provided that (a) the Receiving Party may not use such Proprietary Information whatsoever, and (b) the Receiving Party shall remain subject to the confidentiality provisions herein with respect to such Proprietary Information.

 

b. The Receiving Party shall obtain no title or other property rights in the Personal Information.

 

c. The Receiving Party shall only use the Personal Information for the purpose of this Agreement. The Receiving Party shall only use or disclose the Personal Information as necessary to perform this Agreement, or pursuant to the unambiguous prior consent of the individual (for which the Receiving Party has the responsibility of obtaining), or as otherwise required by law. If the Receiving Party collects additional Personal Information from an individual pursuant to this Agreement, then the Receiving Party’s collection, use, and disclosure of such Personal Information shall be pursuant to the prior unambiguous consent of the individual (for which the Receiving Party shall have the responsibility of obtaining).

 

d. The Receiving Party shall implement precautions to protect the Personal Information from loss; misuse; and unauthorized access, disclosure, alteration, or destruction. The Receiving Party shall promptly report to the Disclosing Party any improper or prohibited use or disclosure of the Personal Information of which it becomes aware.

 

e. If the Disclosing Party reasonably determines that the Receiving Party has violated a material term of the Section 9, the Disclosing Party may terminate the Agreement thirty (30) Calendar Days’ prior written notice. In addition, the Receiving Party’s obligations under this Section 9 shall survive the expiration or termination of this Agreement.

 

10) INDEMNIFICATION

 

a. The Indemnifying Party shall defend, indemnify, and hold harmless the Indemnified Party from and against any Indemnified Harm that arises from or relates to any third party claim or suit against an Indemnified Party to the extent directly or indirectly caused by the Indemnifying Party’s act or omission in connection with this Agreement that causes or contributes to an Indemnifiable Claim. The Indemnified Party agrees to give the Indemnifying Party prompt Notice of any third party claim (provided, however, that such Notice shall not be a condition to the Indemnifying Party’s indemnity obligations hereunder unless the Indemnifying Party is materially and adversely affected by the Indemnified Party’s failure or delay in giving such Notice). If the Indemnifying Party has reconfirmed, in writing and in a timely manner, its obligations to indemnify the Indemnified Party for a particular third party claim and the Indemnifying Party has provided the Indemnified Party with assurances satisfactory to the Indemnified Party that the Indemnifying Party has sufficient resources to satisfy its indemnity obligations hereunder the Indemnified Party will allow the Indemnifying Party to control the defense of such third party claim as long as the Indemnifying Party acts promptly and reasonably. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of such claim. Any settlement by the Indemnifying Party must be approved by the Indemnified Party, with such approval not to be unreasonably withheld if the Indemnified Party receives a complete release of any such Indemnifiable Claim. Notwithstanding anything herein stated, if in the Indemnified Party’s reasonable judgment, the interests of the Parties conflict, the Indemnified Party may select, at the Indemnifying Party’s expense, its counsel as long as the Indemnified Party provides the Indemnifying Party Notice of such selection within ten (10) Business Days after receiving service of a summons and complaint. Further, notwithstanding anything herein stated, the Indemnified Party shall at all times have the right to fully participate in such defense at its own expense directly or through counsel; provided, however, if representation of both Parties by the same counsel would be inappropriate under applicable standards of professional conduct and either Party obtains a written legal opinion to such effect, then the reasonable expense of separate counsel for the Indemnified Party shall be paid by the Indemnifying Party.

 

11) LIMITATIONS OF LIABILITY

 

a. Neither Party shall be liable to the other for any special, incidental, consequential, or punitive damage of any kind even if advised of the possibility thereof. The foregoing limitations shall not apply to or in any way limit either Party’s indemnification obligations hereunder.

 

12) ASSIGNMENT

 

a. The rights and obligations of Member under this Agreement may not be assigned by Member, nor may Member subcontract or otherwise delegate the performance of any its duties hereunder without, in either case, Procurement Concepts’ prior written consent (which consent shall not relieve Member of any obligations hereunder or of full responsibility for any permitted Subcontractors or delegates). Procurement Concepts may without consent of Member, assign (i) this Agreement to an Affiliate; and/or (ii) its right to payments herein. Any assignment or delegation in contravention hereof shall be null and void. The Agreement shall be binding upon the Parties hereto, their heirs, successors, assigns and personal representatives, and reference to the Member and Procurement Concepts shall include their respective successors and permitted assigns.

 

13) GOVERNING LAW

 

a. The Agreement shall be deemed to have executed and delivered with the State of Illinois, and the rights and obligations of the hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of Illinois without regard to principles of conflict of laws. Member waives trial by jury.

 

14) SEVERABILITY

 

a. In the event one or more of the provisions contained in the Membership Agreement shall for any reason be held to violate any law, regulation, or requirement of the United States or the State of Illinois or any regulatory body thereof, the Parties’ obligations hereunder shall be modified in accordance with such law, provision, or regulation in a manner that shall implement the intent of this Membership Agreement in the best possible manner. In the event that such provision is voided by such law, regulation, or requirement, on such provision shall be voided and the remainder of the Membership Agreement shall remain in full force and effect.

 

15) ENTIRE AGREEMENT

 

a. This Agreement constitutes and contains the entire agreement and understanding between the parties concerning the subject matter of this Membership Agreement. This Agreement is executed with reliance on any promise, warranty or representation by any party or any representative of any other Party than those expressly contained herein and each Party has carefully read this Agreement, has been advised of its meaning and consequences by his attorney, and each party signs the same of his own free will.

 

16) SURVIVAL

 

a. Unless otherwise provided herein, the rights and obligations of any Party which by their nature extend beyond the expiration or termination this Agreement shall continue in full force and effect notwithstanding the expiration or termination of this Agreement.

 

17) NONWAIVER

 

a. No waiver of any right or remedy hereunder with respect to any occurrence or even on one occasion shall be deemed a waiver of such right or remedy with respect to such occurrence or any other occasion.

 

18) 1 COUNTERPART EXECUTION – EFFECT – PHOTOCOPIES – FAXES

 

a. This Agreement may be executed in counterpart, and each counterpart, when executed, shall have the efficacy of a signed original. Photographic or faxed copies of such signed counterparts may be used in lieu of originals.

 

19) ATTORNEYS FEES

 

a. In the event it is necessary for Procurement Concepts to enforce the terms of this Agreement, or in the event of a breach by Member, Procurement Concepts shall be entitled to reasonable attorney’s fees and costs associated therewith.

 

20) MODIFICATIONS IN WRITING

 

a. Any modification or amendment of any provision of this Agreement must be in writing and bear the signature of the duly authorized Representatives of both Parties.

 

21) INTEGRATION

 

a. This Agreement, together with any exhibits, schedules, or attachments to this Agreement or any other document incorporated herein by reference, sets forth the entire Agreement and understandings between the Parties and supersedes and replaces any other agreement that may have existed between Member and Procurement Concepts with respect to the subject matter hereof.