eAssist Buying Power Membership Enrollment Agreement
Updated August 14, 2021
This Membership Enrollment Agreement (“Agreement”) is entered by and between eAssist Buying Power LLC, a Wyoming limited liability company (“EBP”) and the party signatory below (“Member”). Member represents and agrees that all information relating to the Member given through the www.buyingpower.com enrollment process (“Enrollment Process”) is accurate and complete, attributed to the Member and incorporated into this Agreement by reference.
EBP is acting as a dental group purchasing organization operating in accordance with 42 C.F.R 1001.952 that is developing a contract portfolio of negotiated agreements (“EBP Vendor Agreements”) with manufacturers, vendors, wholesalers and distributors (collectively, “Vendors”), receiving no more than 3% contract negotiating fees, for products and services available for purchase by Member (and other members of EBP’s purchasing group) under the EBP Vendor Agreements.
The Member is an approved dental provider, in good standing, and requests products and services for its own consumption (not for resale) for which payment may be made in whole or in part under the Federal health care programs.
In consideration of the covenants and promises of the parties contained herein, as well as other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:
- Authorization. EBP is authorized to negotiate Vendor Agreements on behalf of Members, subject to the terms herein, for discounted purchase opportunities on behalf of the Member. Member authorizes EBP to execute such agreements on the Member’s behalf or otherwise for the Member’s benefit.
- Access to EBP Vendor Agreements. During the term provided, and as Member complies with the terms and conditions of this Agreement, Member may have access to EBP Vendor Agreements. However, the Vendor is permitted to make the final determination whether or not Member is eligible to participate in the EBP Vendor Agreement and access the contract prices thereunder. EBP will provide Vendor with relevant information received from Member to establish Member qualifications to participate in the EBP Vendor Agreement, but EBP does not guarantee Member’s acceptance in any EBP Vendor Agreement. Member agrees to abide by all requirements arising from EBP Vendor Agreements, and to not take any action that would violate the same.
- Affiliates. Member acknowledges that this Agreement pertains to Member only, and that any affiliated dental practices of Member will need to enter into their own enrollment agreement with EBP. Member represents and warrants that neither it nor any such affiliate is wholly owned by EBP nor a subsidiary of a parent corporation that wholly owns EBP.
- Hold Harmless. Member agrees to defend, indemnity and hold harmless EBP, including its parent companies, other affiliates, officers, directors, employees, contractors and other representatives, for, from and against any claims, suits, awards, liabilities, costs, expenses, damages or losses of any kind arising in any way from: (a) any breach of this Agreement by Member, (b) any purchases made by Member from a Vendor, including Member’s receiving any mislabeled or misformulated products and services purchased under any EBP Vendor Agreements, (c) Member’s use, misuse or dispensing of products and services, (d) the Member’s failure to receive any discounted pricing, and/or (e) the EBP Vendor Agreements.
- Non-Transferrable. Member acknowledges and agrees that the contract prices made available through EBP Vendor Agreements are only to be accessed by Member for its own use. Member shall not sell, wholesale or otherwise transfer any products and services purchased under EBP Vendor Agreements to any person or other entity, except as provided herein or permitted by law.
- Term and Renewal of Agreement. By signing this Agreement, non-eAssist Member agrees to participate in the EBP monthly membership purchasing program. This Agreement will automatically renew each month unless Member provides (30) day notice of intent to terminate in the manner outlined in Notice Requirements section of this Agreement below.
- Minimum Purchase Requirement. EBP seeks out the best Vendors to be part of the EBP’s program. Member acknowledges and agrees that it is beneficial to utilize the Vendors and Member’s primary suppliers of their particular supplies or products, and agrees to use commercially reasonable efforts to annually purchase many of its applicable needed supplies or products from the Vendors Member signs up with.
- Feedback. Member agrees to provide EBP ongoing feedback on any product or service item evaluations, or product or service updates. Member also agrees to communicate to EBP a list of additional items or services needed that are not currently offered or deemed not cost effective to purchase through the EBP program, as well as any other information reasonably required to be gathered under EBP Vendor Agreements.
- Contact and Reviews. Scheduled business reviews with the Member and EBP are recommended to validate Member’s ongoing savings and communicate any further purchase opportunities. By providing a physical address, email address, and/or phone number, Member agrees to be contacted by letter, email, phone and/or text by EBP and Vendor representatives unless or until a written request for no further contact is received by EBP from the Member.
- Fees. Clients of eAssist, Inc., dba eAssist Dental Solutions (“eAssist Dental Solutions”), once enrolled with EBP, will be EBP Premium Plus Members. The fee for this membership is included in the fees these clients pay to eAssist Dental Solutions.
For non-eAssist Dental Solutions clients, the fee for EBP Premium Memberships will be separately assessed on a yearly basis at an initial rate of $299 per year. At all times during the term of this Agreement, Member agrees to provide EBP with a valid, non-expired credit card number for purposes of paying amounts Member owe under this Agreement as set forth herein (the “Credit Card”). To the maximum extent permitted by applicable law, Member authorizes EBP to automatically and immediately (i) take payment via ACH debit, or credit, for all amounts Member owes to EBP under this Agreement as they become due. However, the fact that EBP may use ACH debit or the Credit Card to receive amounts owed does not mean that EBP must utilize either method to receive payment, nor does it relieve the Member of any of its obligations under this Agreement. The fee amount for EBP Premium Memberships may be changed, from time to time, with a thirty (30) day notice to Member. If at any time a Member wishes to discontinue membership, thirty (30) day notice must be given in accordance with the Term and Renewal of Agreement Section of this Agreement above.
- Disclosure Requirement. The parties, including Member, intend that any “discounts or other reductions in price” qualify under the discount safe harbor rules adopted under Section 1128 B (b)(3)(A) of the Social Security Act (42 U.S.C. Section 1320a-7b(b)(3)(A)). Member will disclose the discounts or reductions in price as required, under any state or federal laws, including those applicable to any program that provides cost or charge-base reimbursement to Member for the products and services covered under this Agreement, and in all other respects.
- Returns. Member agrees to contact the applicable Vendors within 72 hours of receipt of any items or services that are in error, deficient or otherwise unacceptable. Member acknowledges and agrees that EBP will not be responsible for the same.
- Confidentiality. Pricing and discounts provided as part of the EBP program are confidential (“Confidential Information”). Member will not disclose any Confidential Information without prior written consent of EBP. Member will not disclose to any other parties, including other companies, sales representatives, competitors, group purchasing organizations or healthcare professional or associations, the agreed purchase costs of products or services from any Vendors, nor what the Member paid for such products or services prior to joining EBP, without the prior written consent of EBP. Member will communicate such confidentiality requirements to all of its staff. Member also agrees to inform its staff that products and services purchased under EBP program may not be resold.
- Notice Requirements. All notices given under this Agreement must be in writing and will be effective (a) three (3) business days after deposit in the U.S. Mail, certified, return receipt requested, postage prepaid or (b) one (1) business day after deposit with a reputable express next-day courier providing written receipt of delivery, in each case addressed to the Member at the address given to EBP during the enrollment process, or addressed to EBP at its current address given on www.dentalbuyingpower.com. As applicable, Members will be responsible to purchase any products specifically brought onto the inventory shelves at Member’s request (quantity not to exceed a 30-day inventory).
- Warranties. EBP MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS AND WARRANTIES RELATED TO THE PRODUCTS AND SERVICES MADE AVAILABLE UNDER THE EBP VENDOR AGREEMENTS AND ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Limiting Liability Generally. IN NO EVENT WILL EBP BE LIABLE TO MEMBER, ANY OF MEMBER’S PATIENTS, OR ANY THIRD PARTY ASSOCIATED WITH MEMBER OR MEMBER’S OFFICE(S), FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ARISING OUT OF OR RELATING TO ANY SERVICES, PRODUCTS, MERCHANDISE, GOODS OR OTHER ITEMS RECEIVED FROM VENDORS OR UNDER OR IN CONNECTION WITH ANY EBP VENDOR AGREEMENTS.
- Governing Law. This Agreement will be governed by the laws of the State of Utah, without giving effect to any choice of law provisions.
- Dispute Resolution. If a dispute arises under or relates to this Agreement:
(a) Mediation. Member and EBP agree to first attempt to resolve that dispute through good faith, non-binding mediation as follows:
(i) Within ten (10) business days after Member or EBP provides the other with written demand for mediation under this Section, Member or EBP (and legal counsel, if desired) will, in good faith, discuss the issues involved, discuss a suitable mediator and mediation procedure, and agree on reasonable mediation rules, with a view to the dispute’s prompt, efficient, and just resolution.
(ii) Member and EBP will participate in not less than four (4) hours of non-binding mediation on each dispute, and that mediation will occur in the State of Utah. Unless EBP agrees otherwise, the mediator’s fees will be borne equally by Member and EBP.
Despite what is said above, EBP may opt out of its requirement to mediate under this Section by providing Member with notice of the same.
(b) Litigation Only in Utah. The mediation described above, as applicable, must occur before either Member or EBP may proceed with any further legal action of the applicable dispute. After that mediation, or if Member or EBP fails to so mediate, any action on the dispute must be brought, and will be located, only in the State of Utah, and the applicable state and federal courts located in the State of Utah will have exclusive jurisdiction over any such action between Member and EBP and its enforcement. Member and EBP agree and consent to the exclusive jurisdiction of those courts.
- Authorization to Sign. The individual signing and submitting this Agreement for the Member represents, warrants and agrees that he or she has authority to bind the Member to this Agreement.
- Entire Agreement; Modification. This Agreement was last updated on the date set forth above. EBP expressly reserves the right to modify this Agreement by providing Member with notice of the same, including by posting an updated version on the EBP website at www.dentalbuyingpower.com. Member acknowledges and agrees that it is Member’s responsibility to review the Membership Enrollment Agreement from time to time and to familiarize itself with any modifications. Member’s continued participation in the EBP program after such modifications by EBP will constitute acknowledgement of the modified Membership Enrollment Agreement and agreement to abide and be bound by it. Other than as set forth above, no modifications to this Agreement will be binding unless agreed to in writing by both parties. For questions about the Membership Enrollment Agreement, please email email@example.com.
- Waivers. The failure of either party to insist on strict compliance with any provision of this Agreement will not be deemed a waiver of that provision. Any waiver or relinquishment of any right under this Agreement must be given in writing by the waiving party to be effective, and will only apply to the time or times clearly described in that writing.
- Severability of Provisions. Whenever possible, each part of this Agreement will be interpreted to be effective and valid under applicable law. If any part of this Agreement is invalid or unenforceable, that part will be modified to achieve the parties’ objectives to the fullest extent permitted, and any such invalidity or unenforceability will not affect the validity or enforceability of the rest of this Agreement.
- Attorneys’ Fees. If any action is brought to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other available relief.
- Assignment. Member may not assign this Agreement without EBP’s prior written consent. If Member desires to assign this Agreement in connection with selling Member’s practice, EBP may require the new doctor to execute a new agreement with EBP.
- Excusable Delay. If a party can’t perform under this Agreement (including any Vendors) because of something that occurs outside of that party’s control (including the interruption or failure of telecommunication or digital transmission links, or pandemics or laws or government actions resulting from the same), that party will be excused from such performance until that occurrence or hindrance is over. However, this Section does not apply to Member’s obligation to pay EBP amounts owed under this Agreement or to pay Vendors amounts owed under EBP Vendor Agreements.
- Benefit. The terms and conditions of this Agreement will inure to the benefit of, and be binding upon the parties and their respective permitted successors and assigns. The parties entitled to be indemnified or reimbursed under the Hold Harmless Section of this Agreement above who are not signing this Agreement will be deemed intended third-party beneficiaries of this Agreement with authority to enforce all provisions of this Agreement that benefit them. Other than as stated in this Section, nothing in this Agreement is intended to confer upon any other third party any rights, remedies, obligations, or liabilities.
- Interpretation. This Agreement will be interpreted as though prepared and negotiated by Member and EBP. All words used in this Agreement will be construed to be of such number and gender (including neuter) as the context requires or permits.
- Counterparts/Signature. This Agreement may be executed in one or more counterparts, and all of the counterparts will constitute one and the same agreement. A facsimile, email, “click-through agreement” or other electronic or digital signature will be fully valid and considered an original.