This GPOPHTHO PARTICIPATION AGREEMENT (“Agreement”) for Membership Application is submitted by and between GPOPHTHO, LLC, a Delaware limited liability company (“GPOPHTHO”) and the party completing the Membership Application  (“Member”).

WHEREAS, GPOPHTHO is a group purchasing organization that negotiates and enters into contracts (“Contracts”) with manufacturers, wholesalers and/or distributors (“Contracted Vendors”) for various medical and surgical products, software, and supplies, among other things (“Medical Products”) and other supplies, including office supplies, unrelated to the practice of medicine (“Other Products”, and collectively Other Products and Medical Products will be referred to herein collectively as “Products”);

WHEREAS, Member desires to become a member of GPOPHTHO and GPOPHTHO is willing to offer Member the benefits of such membership, subject to the following terms and conditions.

NOW, THEREFORE, in consideration of the promises and the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, GPOPHTHO and Member hereby agree as follows.

1. GPOPHTHO PROGRAM

1.1 General Terms. Member hereby authorizes GPOPHTHO to act as its exclusive group purchasing organization for the Products, and GPOPHTHO hereby agrees to act as Member’s group purchasing organization for the Products, and as related to Medical Products, Member’s group purchase organization as such term is defined at 42 C.F.R. § 1001.952(j)(2). As such, Member will have the opportunity to access the pricing and terms under the Contracts for Products. As a condition to accessing Products through Contracts, Member shall abide by the conditions of sale for any such Product, including timely payment and any “own-use” provision imposed by the Contracted Vendor, as applicable. Member hereby acknowledges that the discounts available under the Contracts are exclusive of any additional incentives or rebates that may be offered by Contracted Vendors under separate programs. Member hereby agrees not to attempt to access such other incentives or rebates for Products purchased hereunder to the extent prohibited by the applicable vendor. For clarification purposes, Member’s exclusivity obligations pursuant to this Section 1.1 shall be limited only to the Products covered by GPOPHTHO Contracts, meaning that Member is permitted to engage other group purchasing organizations for purposes of those products not covered by GPOPHTHO Contracts.

1.2 GPOPHTHO Authorized Distributors and Wholesalers; Data. Member agrees to designate GPOPHTHO as its group purchasing organization for Products and agrees to communicate such designation in writing if requested to the Contracted Vendors, authorized distributors and wholesalers from whom Member makes purchases. All purchases of Products will be made using the license numbers disclosed to GPOPHTHO on the Membership Application Form. Member authorizes all distributors, wholesalers, and manufacturers from which it purchases Products hereunder to provide GPOPHTHO, at a minimum on a monthly basis, with all of its purchasing data relating to purchases under the Contracts.

1.3 Agent Only. In performing its role as a group purchasing organization, GPOPHTHO negotiates prices and terms and otherwise manages the Contracts but does not take title to or possession of the Products or perform any services offered by Contracted Vendors. GPOPHTHO does not endorse or guarantee any of the Products or services offered under any Contract. Additionally, GPOPHTHO cannot and will not be responsible to its Members, their employees or agents, patients, or any party for any damages or liability that result from use of the Products or that in any other way relates to those Products, including, without limitation, any defects or damages in the Products, delay in delivery and/or any other act or omission by third parties with respect to the Products.

1.4 No Purchasing Requirements. Nothing contained herein shall be construed to require Member to purchase any Products under a GPOPHTHO Contract.

2. MEMBER’S RESPONSIBILITIES

2.1 Affirmation. Member hereby represents and warrants that all information contained on the attached Membership Application Form is true, accurate and complete.

2.2 Responsibility for Payment. Member agrees that it is solely responsible for payment to the manufacturer, distributor, and/or wholesaler for Products purchased pursuant to a GPOPHTHO Contract and that GPOPHTHO will in no way be responsible for payments owed to the manufacturer, distributor, and/or wholesaler by any Member. In addition, Member acknowledges and agrees that GPOPHTHO is not responsible for the manufacturer’s, distributor’s and/or wholesaler’s actions with respect to the Products purchased through the GPOPHTHO program, nor is GPOPHTHO responsible for how a Member or any other party uses the Products.

2.3 Confidentiality of Information. For purposes of this Agreement, the term “Confidential Information” shall include, without limitation, any information or data, whether printed written, oral or electronically stored or reproduced, and whether provided in response to a specific inquiry or voluntarily, including, without limitation, marketing data, financial or business information, information regarding trade secrets, the management and operations of GPOPHTHO, the identity of the manufacturers, wholesalers or distributors with which GPOPHTHO is negotiating, pricing information, and any and all terms of any contracts being negotiated by GPOPHTHO or entered into by GPOPHTHO. All Confidential Information is confidential and proprietary information of GPOPHTHO and may not be disclosed to any third-party for any reason, except to purchase Products hereunder and under a Contract. Without limiting the generality of the foregoing, Member may not disclose Confidential Information for the purposes of attempting to get a better price from another manufacturer or vendor. Member agrees to retain strict confidence and not to market, sell, or disclose Confidential Information, and to require any and all of its employees, consultants, representatives or agents, and all employees, consultants, representatives or agents of its affiliates, to retain in strict confidence and not to market, sell or disclose Confidential Information. If Member is requested or required by legal process to disclose any Confidential Information, Member shall immediately give notice of such request or requirement to GPOPHTHO so that GPOPHTHO may, at its own cost and expense, seek an appropriate protective order or, in the alternative, waive compliance with this Section 2.3 to the extent necessary to permit Member to comply with the request or order. Upon termination or expiration of this Agreement, Member shall promptly return to GPOPHTHO or destroy all Confidential Information, including all copies, extracts or reproductions thereof. The terms of this section shall survive any expiration or termination of this Agreement.

2.4 Compliance with Laws. Member agrees that its conduct hereunder and the use of any Products purchased pursuant to a Contract will be in compliance with all relevant federal, state and local laws, rules and regulations, including, without limitation, all laws, rules and regulations relating to the purchase, sale, resale, use, and disposal of products. Member represents and warrants that neither it nor any of its employees has been (i) debarred, indicted, suspended or otherwise excluded from participating in any federal health care or other governmental program, including, but not limited to the Medicare and/or Medicaid programs, or (ii) convicted of a felony or convicted of insurance fraud.

2.5 Class of Trade. Member is solely responsible for identifying to GPOPHTHO in writing its appropriate class of trade, and Member agrees to indemnify and hold harmless GPOPHTHO and/or its affiliated organizations for any costs, expenses, losses, or damages incurred as a result of Member’s designation of an inappropriate class of trade and/or purchases made outside its appropriate class of trade.

2.6 Insurance. Member shall have insurance coverage that is reasonably necessary to enable it to satisfy its obligations hereunder, including but not limited to, its indemnification obligations.

2.7 Notification. Member agrees to notify GPOPHTHO promptly in writing of any change in Member’s class of trade, change of address, or any revocation, suspension, debarment, or termination of any license, certificate, permit or approvals necessary for Member to operate its business, participate in any federal health care or other governmental program, or purchase Products through the GPOPHTHO program, and agrees that GPOPHTHO may offset any amount owed or due to Member by any expense reasonably incurred by GPOPHTHO (including administrative costs) as result of the failure of Member to comply with this section.

2.8 GPOPHTHO Policies. Member agrees that in addition to the terms and conditions contained in this Agreement, it shall also comply with all GPOPHTHO policies established and in effect from time to time.
2.9 Record Keeping. Member agrees to maintain records (“Records”) regarding its purchases from every Contracted Vendor for a period of at least three (3) years following the calendar quarter during which such purchases were made, or longer if required by law. Member shall allow the Contracted Vendors reasonable access to the Records relating to such Contracted Vendor’s Products.

3. FEES

3.1 GPOPHTHO’s Administrative Fee. As compensation for its contract development, management, and administrative services, GPOPHTHO may receive administrative fees of three percent (3%) or less of the purchase price of the Medical Products from the applicable manufacturers, distributors, and/or wholesalers, or if such fees exceed three percent (3%) or more of the purchase price of the Medical Products, GPOPHTHO will provide notice to Member of the percentage of such fee to be paid by Contracted Vendor. GPOPHTHO shall deliver an annual report of the fees received by GPOPHTHO as a result of Member’s purchase of all Products. As compensation for its contract development, management and administrative services, GPOPHTHO may receive administrative fees of any commercially reasonable percentage of the purchase price of the Other Products from the applicable manufacturers, distributors, and/or wholesalers. From time to time, GPOPHTHO may pay to Member certain percentages of the administrative fees received from Contracted Vendors, which Member shall consider and treat as a “discount” on associated Products as that term is defined at 42 C.F.R. 1001.952(h)(5).

3.2 Reporting Requirements. In some cases, Member may be required by law to report certain discounts that it receives, including rebates, to third parties, including governmental entities, prescription drug plans, plan sponsors, pharmacy benefit managers, or other entities participating or providing services pursuant to the Medicare Part D Prescription Drug Benefit. Member agrees that, if requested or required to do so by contract or law, it will fully and accurately disclose and appropriately reflect any discount, rebate or reduction in price that it receives in any report submitted to any governmental agency including, without limitation, Medicare and Medicaid, or to any prescription drug plan, plan sponsor, pharmacy benefit manager, or other entity required by applicable laws or regulations. Member also agrees that, upon request, it will make full and accurate reports or supply documentation to GPOPHTHO regarding its purchases hereunder.

4. TERMS OF MEMBERSHIP

4.1 Term and Termination. The initial term of this Agreement shall be for three (3) years commencing on the Effective Date (the “Initial Term”). This Agreement shall automatically renew for additional one-year terms unless either party provides the other with written notice of its intent not to renew at least ninety (90) days prior to the expiration of the then current term (each a “Renewal Term” and collectively with the Initial Term, the “Term”). GPOPHTHO may terminate this Agreement at any time without cause, with ninety (90) days’ prior written notice of termination provided to Member, and Member may terminate this Agreement without cause only after completion of the Initial Term, without cause, with ninety (90) days’ prior written notice of termination provided to GPOPHTHO. If Member fails to comply with any of the rules or policies of the GPOPHTHO program or any terms of this Agreement, including, but not limited to, the exclusivity requirements of Section 1.1, GPOPHTHO may terminate this Agreement immediately upon notice of such failure to comply to Member.

4.2 Assignment; Applicability. Neither party may assign this Agreement without the written consent of the other, except that GPOPHTHO may assign it to any of its parent, subsidiary, or affiliate organizations or to any successor to all or substantially all of its assets, whether by sale, merger or otherwise.

4.3 Choice of Law; Jurisdiction. This Agreement shall be interpreted, read, construed, and governed by the laws of the State of Delaware. Any lawsuits brought hereunder shall be brought and tried in a court of competent jurisdiction in the State of Delaware.

4.4 Indemnification. Member agrees to indemnify, defend and hold harmless GPOPHTHO, its officers, directors, managers, employees, agents, and its affiliated organizations (“Indemnified Parties”) for any liability, costs or damages, including attorneys’ fees and other costs of defense, incurred in any action or proceeding between Member and any of the Indemnified Parties and/or between any third party and any of the Indemnified Parties, that are caused by Member’s acts or omissions or that in any way relate to Member’s participation in the GPOPHTHO program and/or the Products purchased through the GPOPHTHO program. Additionally, Member agrees to reimburse GPOPHTHO for all expenses (including attorneys’ fees) incurred by GPOPHTHO in connection with responding to any subpoena or governmental inquiry related to any actions or inactions of Member. The terms of this section shall survive any expiration or termination of this Agreement.

4.5 Use of Names in Printed Materials. GPOPHTHO agrees not to use Member’s name in any printed materials without Member’s prior consent. Similarly, Member will not refer to GPOPHTHO in any printed or other materials without GPOPHTHO’s prior consent. Notwithstanding the foregoing, the fact that Member participates in the GPOPHTHO Program is not Confidential Information.

4.6 Limitation of Liability. Notwithstanding any other provision of this Agreement, or where this exclusion or restriction of liability would be void or ineffective under applicable law, in no event will either party be liable to the other under, in connection with or related to this Agreement for any special, indirect, consequential, exemplary or punitive damages (including, without limitation, loss of profits or revenues, loss of goodwill, penalties or withholding of reimbursement by a health care payer, state/federal agency or other entity) whether based on breach of contract, warranty, tort, product liability or any other legal theory, even if that party has been advised of the possibility of such damages. The parties further agree that, notwithstanding any other provision of this Agreement, the or any other agreement between the parties or exhibit hereto, each party’s total cumulative liability under, in connection with or related to this Agreement or in furtherance of the Agreement’s provisions or objectives, shall be limited to actual, direct damages not to exceed the amount of administrative fees paid by Contracted Vendors in relation to Member’s purchases under the Contracts during the twelve (12) month period (or an annualized estimation if this Agreement has not yet been effective for 12 months) preceding the date of the claim.

4.7 Amendment. Except as otherwise provided herein, this Agreement may be amended at any time by mutual written agreement executed by the parties. Furthermore, this Agreement may be amended unilaterally by GPOPHTHO, upon written notice, to the extent necessary to comply with any new or amended federal, state, or local statutes or regulatory requirements, accreditation standards, or licensing guidelines or rules that may become applicable during the Term. Any amendment made in accordance with the preceding sentence shall be effective as of the effective date of the change that made the amendment necessary. In addition, GPOPHTHO may amend or modify this Agreement at any time by giving Member thirty (30) days advanced written notice (“Notice Period”) of the proposed amendment (“Proposed Amendment”). The Proposed Amendment shall be deemed accepted by Member and this Agreement shall be deemed amended as provided in the Proposed Amendment unless Member provides GPOPHTHO with written notice objecting to the Proposed Amendment prior to the expiration of the Notice Period. In the event Member objects to the terms of any Proposed Amendment, GPOPHTHO shall have the right to immediately terminate this Agreement.

4.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which is deemed an original but all of which constitute the same instrument. This Agreement may be executed by the exchange of faxed executed copies, certified electronic signatures or copies delivered by electronic mail in Adobe Portable Document Format or similar format, and any signature transmitted by such means for the purpose of executing this Agreement is deemed an original signature for purposes of this Agreement.

4.10 Notices. Notices required hereunder shall be delivered to the parties at their business addresses noted beneath their signature lines by certified mail, fax or .pdf. Member hereby grants consent for the Member to receive facsimiles to such fax number(s) and email correspondences as are set forth on the Member Application Form.