Terms & Conditions
THIS PROFESSIONAL SERVICES AGREEMENT the ("Agreement") is made effective as of the date submitted and received in the completed order form (the "Effective Date") by and between Vetcelerator LLC., a Tennessee Limited Liability Corporation (the "Company") with offices located at 10629 Hardin Valley Road, Suite 129, Knoxville, TN 37932, and the associated Veterinary Practice and Practice Owner listed in the order form. (the "Client"). Client agrees that they are completing the application for a licensed veterinary practice and that Practice desires to join Vetcelerator and use Vetcelerator as its preferred GPO, and Vetcelerator desires to add Client to its GPO. Company and Client shall each be referred to herein as a "Party" and collectively as the "Parties."
1. The Services.
1.1 Company shall provide Client access to its Group Purchasing Organization vis-a-vis the Vetcelerator Membership Program. The Vetcelerator Membership program gives access to negotiated discounts and/or rebates from manufacturers, providers, and suppliers to Veterinary Practices ("Partners"). Company shall provide the Services (a) in accordance with the terms and subject to the conditions set forth in this Agreement; (b) using personnel of required skill, experience, and qualifications; (c) in a timely, workmanlike, and professional manner; (d) in accordance with generally recognized industry standards in Company's field; and (e) to the reasonable satisfaction of Client. No provision of this Agreement is intended, nor shall it be construed, to permit the Company to affect or influence the professional judgment of any member of the Client's Providers.
1.2 Merck Opt-In Program: Clients wishing to enter program benefits with Merck Animal Health will enter into a 3-month pilot period effective the date discounts are activated in their client account. Additional details for the Merck Opt-In Program will be provided for interested Clients under separate amendment.
2. Responsibilities of the Client
2.1 Client shall make Company primary GPO for programs they wish to join. Client is not required to withdraw from any other GPO, however Client must submit to have Company listed as Primary GPO for Partners that overlap with Client's other GPOs. These vendors include, but are not limited to Merck Animal Health and MWI Animal Health.
2.2 Client shall respond promptly to any Company's request for information or approvals that Company requires to perform the Services.
2.3 Client shall retain its license to practice veterinary medicine
2.4 Client gives consent to Vetcelerator and its Partners to access Client purchasing data to the extent said data is used to benefit the practice in maximizing their membership benefits.
3. Term And Termination.
3.1 Term. The term of this Agreement is the Effective Date of this Agreement and, unless terminated earlier pursuant any of the Agreement's express provisions, will continue in effect for twelve (12) months thereafter such date (the "Term").
3.2 Renewal. This Agreement shall automatically renew for twelve (12) month periods, unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively, with the Initial Term, the "Term").
3.3 Termination for Cause. Either Party may terminate this Agreement or any SOW, effective upon written notice to the other Party (the "Defaulting Party"), if the Defaulting Party:
-
materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or
- (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within forty five (45) business days or is not dismissed or vacated within ninety (90) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
3.4 Effects of Termination or Expiration. Upon expiration or termination of this Agreement for any reason:
- Company shall provide reasonable cooperation and assistance to Client upon Client's written request and at Client's expense in transitioning the Services to a different Service Provider;
- Each Party shall (i) return to the other Party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party's Confidential Information, (ii) permanently delete all of the other Party's Confidential Information from its computer systems, and (iii) certify in writing to the other Party that it has complied with the requirements of this clause. Notwithstanding the foregoing, a Party may retain one copy of the Confidential Information solely and exclusively for legal or regulatory purposes, and in no event for any commercial purpose, and any such retained Confidential Information shall remain subject to the provisions of the section for as long as the Confidential Information is retained.
4. FEES
There are no fees associated with this agreement.
5. Mutual Representations and Warranties.
Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
6. Confidentiality.
6.1 Confidentiality. For the purposes of this Agreement "Confidential Information" means any and all information disclosed, provided or made accessible by, or on behalf of, one Party ("Disclosing Party") to the other Party ("Receiving Party") and/or any of its key persons, whether in writing, orally or in any other form which is not in the public domain, or regarding past, present, or future marketing and business plans, technical, financial or other proprietary or confidential information of the Disclosing Party, or which, given the nature of the information or material, or the circumstances surrounding the disclosure or provision, reasonably should be understood to be confidential or proprietary, as well as improvements, derivatives, upgrades, updates, and know-how related thereto. Confidential Information does not include information that: (i) is already or becomes generally known or available to the general public through no act or omission by the Receiving Party in breach of this Agreement; (ii) is already known to the Receiving Party at the time of disclosure without breaching any confidentiality obligation, as such may be evidenced in the Receiving Party's written records; (iii) is rightfully disclosed to the Receiving Party by a third party, who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality; (iv) is independently developed by the Receiving Party without use of, reference to, any of the Confidential Information of the Disclosing Party, as such may be evidenced in the Receiving Party's written records; (v) is released and disclosed pursuant to a binding order of a government agency or a court, provided that the Receiving Party (a) if legally permissible, notifies the Disclosing Party of such release or disclosure with as much notice as reasonably possible so that the other Party may seek a protective order or other appropriate remedy; and (b) uses reasonable efforts to limit such release or disclosure only to the extent required. Neither Party shall disclose any Confidential Information to any third party; provided, however, that a Party may disclose Confidential Information to its employees, agents and/or independent contractors to whom disclosure is reasonably required provided that such individuals and entities have agreed to keep such information confidential in the same or a substantially similar manner as provided for in this Agreement. Neither Party will use any Confidential Information except as expressly permitted by, or as required to achieve the purposes of, this Agreement. Each Party will take reasonable security precautions to protect and safeguard the Confidential Information against any unauthorized use, disclosure, transfer, or publication, with at least the same degree of care and precaution as it uses to protect its own Confidential Information of a similar nature, but in no event with less than reasonable care. Either Party shall notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information and shall take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or other breach of this Agreement. The Parties agree that in the event of a breach of this Section 6, substantial injury could result to either Party and money damages may not be a sufficient remedy for such breach. Therefore, in the event that a Party engages in, or threatens to engage in any act which violates any provision of this Agreement, the Parties agree that the non-breaching Party shall have no adequate remedy in money or damages and, accordingly, shall be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions), and specific enforcement of the terms of this Agreement. The non-breaching Party shall not be required to post a bond or other security in connection with the granting of any such relief.
7. GENERAL PROVISION
7.1 Headings. The section headings used in this Agreement are intended for reference purposes only and shall not affect the interpretation of this Agreement.
7.2 Waiver. No failure on the part of any Party to exercise, and no delay in exercising, any right, power, or remedy under this Agreement shall operate as a waiver thereof.
7.3 Remedies Not Exclusive. Except as expressly set forth herein, no remedy hereunder is intended to be exclusive of any other remedy available hereunder or at law or in equity.
7.4 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision. The illegality, invalidity, or unenforceability of such provision shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and that provision, and this Agreement generally, shall be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the Parties as expressed in this Agreement. The fact that any provision of this Agreement is held to be illegal, invalid, or unenforceable in a particular district shall have no effect upon the legality, validity, or enforceability of such provision in any other jurisdiction.
7.5 No Strict Construction. If an ambiguity or question arises with respect to any provision of this Agreement, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of authorship of any of the provisions of this Agreement.
7.6 Assignment. Neither this Agreement, any Exhibit or any rights or licenses granted hereunder may be assigned, delegated, or subcontracted by Client without the prior written consent of Company, and any attempt to assign any rights, duties or obligations which arise under this Agreement without such consent shall be invalid ab initio. This Agreement will be binding upon and will inure to the benefit of the Parties and their respective permitted successors and assignees. Notwithstanding the foregoing, a Party may assign its rights, duties, or obligations under this Agreement without the consent of the other Party in the event of a merger, acquisition, or other change in control of its ownership.
7.7 Independent Contractor Relationship. The Parties are independent contractors, and this Agreement does not create an agency, partnership, or joint venture relationship between the Parties. Each Party has sole responsibility for its activities and its personnel and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate the other Party in any manner.
7.8 Notices. All notices and other communications required or permitted to be given to a Party pursuant to this Agreement shall be in writing, and shall be deemed duly given (i) on the date delivered if personally delivered; or (ii) on the business day after being sent by Federal Express or another recognized overnight courier service which utilizes a written form of receipt for next day or next business day delivery in each case addressed to the applicable Party at the address set forth on the first page of this Agreement; provided that a Party hereto may change its address for receiving notice by the proper giving of notice hereunder. A copy of any notice to Company shall be sent to: 10629 Harden Valley Dr. Suite 129, Knoxville, TN 37932.
7.9 Governing Law/Jurisdiction/Venue/Legal Fees. This Agreement, and all matters arising directly or indirectly from this Agreement, shall be governed by, and construed in accordance with the laws of the State of Tennessee, without regard to its conflict of laws rules applicable to contracts to be performed entirely within the State of Tennessee. For all such matters, each Party irrevocably submits to the exclusive authority of the state and federal courts located in the County of Knox, State of Tennessee and waives any jurisdictional, venue, or inconvenient forum objections to such courts. The prevailing Party in any litigation shall be entitled to recovery of its reasonable attorneys' fees from the other Party in addition to any other award of damages from the court.
7.10 Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing or prior agreements and communications, whether written or oral, relating to the subject matter hereof. No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
