Terms of Agreement – Group Purchasing Participation
This Member Agreement (the “Agreement”) is made as of the date entered above between Resource Department, LLC, a South Carolina limited liability company (“Resource Department”) and the participant entered above (“Member”). Whereas, Resource Department has negotiated agreements with providers of certain products and services; and Whereas, Member wishes to access the network of vendors (“Vendors”) with whom Resource Department has negotiated discounts and rebates, and accordingly the parties agree as follows:
1. Member Agreement.
This Member Agreement is an agreement between Member and Resource Department signifying Member’s intent to utilize the Vendors for relevant and appropriate purchases of the products and services being made available to Member by Vendors (“Products”). Member is not obligated to use Vendors on an exclusive basis and Member is not required to make any minimum level of purchases from Vendors by entering into this Agreement, provided, however, that Member shall use its best efforts to purchase any required goods and services from Vendors pursuant to this Agreement. Member shall be responsible for arranging any purchases from Vendors and shall contract directly with Vendor for the purchase of any applicable Products. Resource Department will provide Member with a regularly updated list of its Vendors, including the prices, rebates and other terms and conditions being offered for any Products or categories of Products. The now current list of Vendors is attached hereto as Exhibit A.
The initial term of this Agreement is for one (1) year from the date of execution unless terminated by either party according to the termination provision provided herein. At the conclusion of the initial term, this Agreement will automatically renew for successive one (1) year periods unless otherwise terminated in accordance with the termination provision provided herein.
Either party may terminate this Agreement, with or without cause, by providing 30 days written notice to the other party. The Member may, upon 30 days written notification of Resource Department, terminate their use of any or all Vendors or Products. A Member’s termination of a specific supply or service agreement does not require its termination as a Member in the Resource Department purchasing program.
4. Fees and Rebates.
Member may receive rebates on purchases made from Vendors. Any such rebates will be paid by Resource Department on an annual basis within 30 days following the end of any calendar year. Provided, however that, Resource Department shall not be responsible for any disputes between a Member and Vendor regarding the calculation of any such rebates. Any such rebates shall be based on actual paid sales during the applicable quarter in accordance with the Vendor’s applicable terms and conditions for such rebates. Amounts subject to contracts, but not yet paid to a Vendor shall not be subject to any rebates until such amounts have been paid to the applicable Vendor. For the avoidance of doubt, below is a sample calculation of a rebate payment. a. Sample rebate calculation: Member purchases $100,000 of Products during a quarter from a Vendor that offers a 2% rebate with $50,000 purchased and paid for and $50,000 subject to existing contracts, but not yet paid to Vendor, then the rebate following that quarter shall be $1,000.
5. Best Efforts/Non-exclusivity.
Member agrees to make a good faith effort to purchase its relevant product/service purchases from Resource Department Vendors during the Term and to allow Resource Department Vendors the opportunity to meet or beat any offer from another supplier on the purchase of relevant Products. Furthermore, each party agrees that it shall at all times during the term of this Agreement observe and comply with all applicable federal, state, and local laws and regulations in connection with its performance under this Agreement.
6. Vendor Agreements:
Member agrees to comply with the terms and conditions of any agreement made available to Member by a Vendor (hereinafter “Vendor Agreement”) through which it chooses to make any purchase.
7. Notice of Administrative Fees:
Periodically, Resource Department receives administrative fees from contracted Vendors based on purchases made by Member. Said administrative fees vary according to each Vendor Agreement (generally three percent (3%) of the purchase price of the goods or services purchased by Member).
8. Marketing Services:
Resource Department will market the purchasing arrangements covered by this Agreement to vendors and other members. Such promotional services may include, as appropriate, the use of direct mail, contact by Resource Department members or other appropriate means. In connection with such marketing services and subject to this Agreement, Member consents to Resource Department using the name, logo or other identifying mark of Member for the inclusion of its marketing materials to Vendors and grants Resource Department with a limited, non-exclusive, royalty free, license during the term of this Agreement to use in connection with this Agreement, Member’s trademarks, name, website addresses, and URLs in any such marketing materials.
9. Limitation of Liability:
Member acknowledges that Member is solely responsible for deciding which if any products or services to purchase through the Vendor Agreements. Accordingly, Member acknowledges and agrees that Resource Department and its respective officers, members, employees, agents and contractors shall not have any liability of any nature or kind whatsoever for any personal injury, property damage, lost profits, attorney’s fees, court costs or any other damages, legal, equitable or otherwise, caused either directly or indirectly by or related to the products or services offered or sold under the Vendor Agreements. Member agrees to hold Resource Department harmless from all losses, damages and costs, of any nature or kind whatsoever (including, but not limited to attorney’s fees and court costs) incurred by Resource Department from Member’s breach of any of the terms and conditions of this Agreement, relating to or arising out of its purchase or use of the Products or in any other way relating to this Agreement.
10. Choice of Law:
This Agreement will be governed by and construed in accordance with the internal substantive laws of the State of South Carolina and the South Carolina courts will have jurisdiction over all matters relating to this Agreement; provided, however, the terms of any agreement between Vendor and a Member will be governed by and construed in accordance with the choice of law and venue provisions set forth in such agreement.
11. Not Responsible:
Resource Department will not be responsible or liable for any Member’s breach of any purchasing commitment or for any other actions of any Member, or be liable to a Member for the breach of any agreement by a Vendor.
Except as otherwise expressly provided herein, all notices or other communications required or permitted under this Agreement will be in writing and will be deemed sufficient when mailed by United States mail, or delivered in person to the party to which it is to be given, at the address of such party set forth. If to Member, notices to be sent to billing address above. If to Resource Department: 106 Strawberry Lane, Clemson, SC 29631. Or such other address as the party will have furnished in writing in accordance with the provisions of this subsection.
13. No Assignment:
No assignment of all or any part of this Agreement may be made without the prior written consent of the other party. Any assignment of all or any part of this Agreement by either party will not relieve that party of the responsibility of performing its obligations hereunder to the extent that such obligations are not satisfied in full by the assignee. This Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement will be prohibited by or invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement. Each party will, at its own expense, take such action as is reasonably necessary to defend the validity and enforceability of this Agreement and will cooperate with the other party as is reasonably necessary in such defense.
15. Entire Agreement:
This Agreement, will constitute the entire agreement between Resource Department and Member. This Agreement, together and each Member’s purchase order, issued directly to a Vendor, will constitute the entire agreement between each Member and Vendor. No other terms and conditions in any document, acceptance, or acknowledgment will be effective or binding unless expressly agreed to in writing.