Talar Medical | Intalere

WHEREAS, Intalere is a national group purchasing organization with a mission focused on elevating the operational health of America’s healthcare providers by designing tailored, smart solutions that deliver optimal cost, quality and clinical outcomes. Specifically, Intalere enters into arrangements with numerous suppliers and distributors (“Suppliers”) to furnish a variety of products and services (“Products”) to institutions or facilities which choose to affiliate with Intalere;

WHEREAS, Intalere provides access to these group purchasing programs and services, along with support services (collectively, the “Programs”), to its participating member institutions and facilities;

WHEREAS, Intalere has entered into an agreement with Talar Medical, LLC (“Talar”) whereby Talar member institutions and entities may choose to participate in the benefits provided to Intalere members through the Intalere Programs; and

WHEREAS, Member operates a health care or other facility that desires to access the Programs in order to purchase Products from Suppliers.

NOW, THEREFORE, and in consideration of these premises, the covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

GROUP PURCHASING AGENT.
Member designates Intalere as one of its national group purchasing agents, and authorizes Intalere to negotiate and enter into agreements with Suppliers in order to make Products available to Member. As such group purchasing agent, Intalere shall not have authority to bind Member without its prior written permission, and Intalere’s duties shall be limited to negotiating prices and other terms with Suppliers. Member’s eligibility to access specific Intalere Supplier contracts shall be established based on Member’s identified class of trade. Member is not obligated to make any purchase under this LOP.

MEMBER AGREES:

a. To purchase Products only for Member’s own use, and to abstain from any resale, diversion, or other use of such Products as may be prohibited by applicable law.

b. Notwithstanding any contrary GPO designation stated above, should Member desire to access the Intalere Pharmacy Program, it agrees to execute the Intalere Pharmacy Program Primary GPO Declaration and Own Use Form in addition to this LOP.

c. To execute an Intalere contract designation form and abide by the terms and conditions of individual Programs in which Member chooses to participate.

d. To work collaboratively with Intalere and specifically agrees not to seek or accept price reductions or other changes to the terms of the contracts negotiated by Intalere with any Suppliers, unless Intalere expressly consents to such changes in advance and in writing.

e. That while Intalere provides sufficient account representation for Member to ensure Supplier compliance with all contract terms and conditions, Intalere shall not be liable for any denied pricing, chargeback, refusal of Suppliers to honor contract pricing, or failure of Suppliers to deliver Products in a timely fashion or of the requisite quality.

f. Upon reasonable notice from Intalere, to provide Intalere with access to all relevant purchase order data and/or Supplier invoice data pertaining to Member’s purchases of Products from a Supplier for which Member has signed a relevant designation or commitment form in connection with Intalere’s audit of such Supplier to ensure the Supplier’s compliance with applicable contract terms. Any such audits by Intalere shall be conducted during Member’s normal business hours and in a manner that, as much as reasonably possible, minimizes disruption to the business and operations of the Member. Intalere shall bear its own costs of any such audit.

g. MEMBER ACKNOWLEDGES THAT INTALERE, NOT BEING THE MANUFACTURER, WHOLESALER OR DISTRIBUTOR OF THE PRODUCTS, MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONDITION, OR OTHER ATTRIBUTE OF THE PRODUCTS OFFERED BY SUPPLIERS UNDER THE TERMS OF INTALERE CONTRACTS. Therefore, Member agrees not to sue, seek reimbursement or indemnification, or take any other legal action against Intalere due to any damage to property or injury to persons that is purportedly caused by or arises our of any of the Products purchased under Intalere’s contracts, or the use of such Products, unless such damage is caused by the negligence or willful misconduct of Intalere, its employees or agents.

SAFE HARBOR NOTICE REGARDING SUPPLIER PAYMENTS TO INTALERE.  Intalere hereby notifies Member that payments, not to exceed three (3) percent of all reported purchases made by or on behalf of Member under the Programs, may be made by Suppliers to Intalere. Any contracts with payments above or with the potential to exceed three (3) percent of all reported purchases made by or on behalf of Member shall be identified as such on the Intalere Contract Data Sheets. All such Intalere Contract Data Sheets are incorporated herein by reference, and shall be in substantially the form set forth and accessible to Member through (a) Intalere’s electronic catalog, and/or (b) Intalere’s website, www.Intalere.com. Intalere will disclose in writing to Member, at least annually, and to the Secretary of the Department of Health and Human Services upon request, the amounts received by Intalere from Suppliers based upon reported purchases made by or on behalf of Membe

TALAR SERVICES DISCLOSURE.  Intalere hereby notifies Member that it has entered into an agreement with Talar to perform administrative services including the promotion of Intalere Programs to Talar members. In consideration of these services , Intalere shall pay Talar a percentage of the posted gross contract administrative fees it collects from Suppliers attributable to purchases of Products made by or on behalf of Member. Further, and pursuant to Talar’s direct agreements with Member, all rebates earned by Member through Intalere Choice® Programs shall be paid to directly to Talar, for as long as the agreement between Talar and Intalere remains in effect. Any further distribution or remittal of rebate payments shall be the sole and exclusive responsibility of Talar.

CONFIDENTIALITY. For purposes of this LOP, “Confidential Information” means any information exchanged from time to time during the term of this LOP which is proprietary to or maintained in confidence by Intalere, including without limitation, the Intalere Program materials, Supplier pricing terms and conditions, any computer software, access to any database, and any other type of information, regardless of the form in which it is stored or transmitted. Member acknowledges and agrees that it will treat all Confidential Information with the same degree of care as Member accords to its own Confidential Information, but in no case less than reasonable care. Member will not use, disseminate, or disclose to third parties any Confidential Information, without the prior written consent of Intalere, except to the extent required by law. Member acknowledges that substantial and irreparable harm would be suffered by Intalere in the event that Member should disclose any Confidential Information to any third party, including any competitor of Intalere, either during or after the term of this LOP. Upon termination of this LOP, Member will return to Intalere all originals and copies of the Confidential Information, retaining no copies. Intalere agrees to maintain the confidentiality of information relating to Member’s purchasing practices and financial status not available in the public domain. Such information as provided by Member shall be solely for the evaluation and enhancement of Intalere’s Products, including those instances where Member may provide Intalere with its data in various forms, as necessary to support the Programs Member chooses to utilize (collectively the “Data”). Member hereby acknowledges that this Data may be aggregated with all Intalere Data and disclosed as necessary to Intalere Suppliers and other third parties that support the Programs, whether or not this Agreement remains in effect. Intalere agrees that such third parties shall be held to the same confidentiality requirements included in this paragraph. Neither party to this Agreement shall disclose the contents of this Agreement to any third party, except as may be required by law or as necessary to carry out the terms and conditions of this Agreement, without the express written consent of the other party. Notwithstanding anything herein to the contrary, Member hereby authorizes Intalere, and its agents and employees, to release to a representative designated by Talar any information and documents (or copies thereof) relating to the purchasing history of Member and authorizes such representative to consult with Intalere relating to such information. Neither party to this LOP shall disclose the contents of this LOP to any third party, except as may be required by law or as necessary to carry out the terms and conditions of this LOP, without the express written consent of the other party.

TERM & TERMINATION. The initial term of this LOP will be for one year commencing on the date it is signed by Intalere. This LOP will renew annually for an additional period of one year upon expiration of the initial term and any subsequent renewal terms of the LOP. Either party may cancel this LOP after the initial term by providing ninety (90) days written notice to the other party.

COMPLIANCE WITH LAWS. Both parties agree to comply with all applicable federal, state, and local laws. To the extent Member receives discounts, rebates, sharebacks, or any other price reductions or revenues as a result of purchases made under this LOP, Member acknowledges that it may have an obligation under federal or state law to report such discounts, rebates, sharebacks, price reductions, or revenues to federal or state healthcare programs or other payors, and agrees to comply with such laws. This LOP shall be governed by and construed and enforced in accordance with the internal laws of the state of Missouri, determined without reference to conflict of laws principles.

AUTHORIZATION TO SIGN. Member appoints Intalere as its agent to act on its behalf solely for the limited purpose of the execution of all contract access forms, deemed reasonably necessary to inform any manufacturers, distributors or vendors, of the Member’s participation in an Intalere Program. Said authorization does not extend to the execution of bilateral commitments which are beyond the limited purpose described above. This Authorization to Sign shall be effective as of the LOP Date and shall remain in full force and effect for the length of the LOP or until the undersigned Member delivers written notice to Intalere of its revocation.

MISCELLANEOUS. All notices and other communications required or permitted to be given under this LOP shall be in writing and shall be deemed given when delivered in person, sent via e-mail, or when mailed by certified mail, return receipt requested, addressed to the parties at their respective business addresses set forth below (or to such other business address or e-mail address as the recipient may have notified the sender in such manner). If any provision of this LOP is found to be unlawful, invalid, or unenforceable, then the remainder of this LOP shall not be affected thereby and shall remain in full force and effect so long as no party is deprived of the material benefits afforded to such party under this LOP. Member warrants that it has legal authority to enter into this LOP on behalf of each of the entities listed on the Attachment A, attached hereto and incorporated herein by this reference. This LOP shall apply collectively to the entities identified above and in Attachment A of this LOP. Member shall provide prompt written notice to Intalere of all additions and changes to Attachment A. Each signatory to this LOP represents and warrants that he or she has all necessary capacity and authority to act for, sign on behalf of and bind the respective entity. This LOP may be executed in two or more counterparts, each of which shall be deemed an original and all of which shall together be deemed to constitute one agreement. Except as otherwise provided herein, this LOP may be amended only by a writing signed by both parties. This LOP constitutes the entire agreement between the parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral.