NOW, THEREFORE, in consideration of the terms, conditions and obligations of Pivotal Group and the Applicant set forth in this Agreement, Pivotal Group and the Applicant agree as follows:
WHEREAS, Pivotal Group is organized to provide discounted services and cost of goods for its Members, who operate independent optometry practices; and
WHEREAS, some Members operate multiple offices, which may have different Tax IDs;
WHEREAS, all of the terms and conditions of this Agreement affect all offices of a Member, jointly and severally, so that if one Member office terminates or breaches this Agreement, all offices of such Member shall be treated as such; and
WHEREAS, the Applicant desires to become a Member of Pivotal Group.
SECTION 1. Membership.
1.1 Membership in Pivotal Group. Provided all other membership criteria have been met, at the discretion of Pivotal Group, and effective upon execution of this Agreement by both parties, the Applicant shall become a Member of Pivotal Group. There are no fees associated with Membership. There are no minimum purchase requirements or commitments associated with membership. Membership does not create an equity interest in Pivotal Group.
1.2 Membership Dues. There are no membership fees. Pivotal Group may impose a reasonable service charge on past due balances of over 30 days.
1.3 Third Party Vendor Set-Up and Pricing. The Member agrees that membership with Pivotal Group allows member to open new accounts with any of Pivotal Group’s preferred vendor partners (PVPs). Members are in no way required to open any accounts or purchase from any specific PVP, at any time during membership, though Pivotal Group reserves the right to terminate any long term inactive memberships at our discretion. If the Member already has an active account with a particular PVP upon activation of membership, such Member may choose to receive Pivotal Group’s preferential pricing with that PVP, and will therefore be subject to new Pivotal Group terms. In this case, member must actively request these terms be switched to Pivotal Groups terms.
1.4 Billing, Payment and Collections. Payments to PVP’s are due directly from the Member unless otherwise specified by Pivotal Group. Due to the unique nature of the negotiated discounts with PVPs, Pivotal Group may sometimes be financially responsible for any non-payment by members. Accordingly, Member hereby gives Pivotal Group full right to seek and collect any unpaid balances owed to PVP’s plus any collection fees in the event of Member non-payment. PVP statements to Member that are more than 30 days past due date may result in Member’s loss of discounts for that entire statement period. The Member agrees that invoices and statements with PVPs will be shared with Pivotal Group for accounting and compliance purposes, but that the contents of such invoices and statements are confidential and Pivotal Group will not share or sell any financial or patient data obtained from such statements or invoices.
SECTION 2. Term and Termination.
2.1 Term. This Agreement shall be a month-to-month, cancellable by either party with 30 days notice, for any or no reason.
2.2 Effect of Termination. Upon termination of membership, Member’s pricing with all PVPs shall revert to any previously negotiated rates between the Member and the PVP. In some cases, PVPs may require terminated Members to cancel their account and re-establish a new account with such vendor under their base rates. Member must pay all balances upon termination, and may be subject to any late fees, collections, and terms until balances through Pivotal Group networks are paid in full.
SECTION 3. Representations and Warranties of Member.
Member hereby represents and warrants that:
3.1 No Conflict. The execution, delivery and performance by the Member of this Agreement and participation in performance under this Agreement, does not and will not: (a) violate any provision of law, statute, judgment, order, writ, injunction, decree, award, rule, or regulation of any court, arbitrator, or other governmental or regulatory authority applicable to the Member or any such employee, subcontractor and representative; or (b) conflict with, violate, result in a breach of or constitute (with due notice or lapse of time or both) a default under any arrangement, understanding, agreement or other legal obligation to which the Member is subject.
3.2 Eligibility. The Member meets all of the qualification and eligibility criteria for membership in Pivotal Group, to the extent the qualification and eligibility criteria have been made available to the Member.
3.3 Accurate Information. To the best of the Member’s knowledge and belief, all information provided or to be provided by the Member hereunder is true, complete and accurate.
3.4 Personal Guaranty. The Member agrees that, with or without notice or demand, he shall personally reimburse vendor or Pivotal Group for all accumulated expenses, to the extent that such reimbursement is not made by the Member, for all expenses (including legal fees) incurred by Pivotal Group in connection with any liabilities of the Member or the collection thereof. This guaranty is a continuing guaranty and shall remain in full force and effect irrespective of any interruptions in the business operations of Member.
SECTION 4. Covenants, Duties and Responsibilities of Member.
Member shall:
4.1 Comply with the policies, rules, and regulations for the transaction of business with Pivotal Group now in effect and from time to time hereafter adopted by Pivotal Group, including those now and hereafter set forth in this Agreement, member policies, price lists and product sheets;
4.2 Use only in the manner authorized by Pivotal Group, any present or future trademarks, trade names, service marks, slogans, trade dress (such as but not limited to color combinations and designs) and copyrights of Pivotal Group, provided, however, that this paragraph does not create any right in the Member to use said marks except as is authorized.
4.3 Keep confidential all trade secrets and confidential information about Pivotal Group, including, but not limited to, its member prices for goods and supplies, proposed private-label products, supplier information, financial information, member information, nonmember patron information, strategic planning directives, governing documents and procedures, all of which shall be referred to herein as “Confidential Information,” and disclose Confidential Information only to those employees of the Member who need such Confidential Information to enable the Member to effectively utilize supplies purchased from PVPs; and to make this policy regarding Confidential Information known to all persons to whom any of the Confidential Information is disclosed. The obligation of the Member regarding Confidential Information under this Section 4.3 shall remain in force for five (5) years in connection with all Confidential Information, written and verbal, obtained from Pivotal Group, its employees or members, with such five (5) year period commencing on the date the last of such Confidential Information was obtained, or (5) years following Member’s termination date, whichever is longer.
4.4 Refrain from directly or indirectly initiating, soliciting, negotiating, contracting or entering into any business transactions with any of Pivotal Group’s employees, officers, or shareholders (“Pivotal Group Representatives”) for a period of one (1) year following such Pivotal Group Representative’s employment with or ownership in Pivotal Group.
4.5 Refrain from directly or indirectly competing with Pivotal Group during the term of this Agreement and for five (5) years after its termination. Such competitive activity would include, without limitation, attempting to operate or form a competing buying group or alliance, or group purchasing organization of any type, sharing information about Pivotal Group’s business structure or practices with competing buying groups, alliances or other related groups, or using price lists and vendor information to enter into, start, negotiate, or operate a competing business.
4.6 Operate the Member’s business in compliance with all applicable laws, ordinances and regulations;
4.7 Promptly make written disclosure to the Pivotal Group of any change in the form of organization, ownership, or control of the Member’s business (whether by merger, consolidation, reincorporation, incorporation, dissolution or any other manner) and to advise the Pivotal Group in the same manner of any change in the officers or identity of the directors of the Member.
SECTION 5. Indemnification.
5.1 Indemnity from Liability. Pivotal Group shall not be liable to the Member for any claims, demands, damages, injuries, actions and or judgments arising out of the sale or use or any of the goods and supplies purchased by the Member from PVPs. The Member shall defend, indemnify, and hold Pivotal Group harmless from all claims, demands, actions, liability, damages, and/or judgments arising from or claimed to arise from, the sale, use, storage or any defects in or properties of, the goods purchased by the Member from the Pivotal Group or any PVP. Pivotal Group in no way guarantees the fitness and merchantability of PVP products and services, and provides no guarantee that Members will benefit financially from PVP relationships. Member further agrees that it is fully responsible for adhering to individual insurance contract requirements and using correct lens and lens option categories specific to each individual contract. Pivotal Group assumes no responsibility for Member’s compliance with these contractual obligations.
SECTION 6. Miscellaneous.
6.1 Force Majeure. Pivotal Group shall not be responsible for, or liable for, failure to perform or for any delay in the performance of any part of this Agreement, directly or indirectly resulting from, or contributed to, by any foreign or domestic embargoes, seizures, acts of God, insurrections, wars, labor disruptions, enactment of any law, ordinance, regulation or ruling directly or indirectly interfering with the acquisition or shipment of goods referred to herein, fires, floods, explosions, or other accidents or contingencies beyond its control.
6.2 Nonwaiver of Rights. Failure of either party to enforce any of the provisions of this Agreement or any rights with respect thereto, or failure to exercise any election provided for herein shall in no way be considered to be a waiver of such provisions, rights or elections or in any way to affect the validity of this Agreement. The failure of either party to exercise any of said provisions, rights or elections, shall not preclude or prejudice such party from later enforcing or exercising the same, or any other provisions, rights or elections which it may have under this Agreement.
6.3 Non-Discrimination Policy. Pivotal Group does not discriminate and will take affirmative action measures to ensure against discrimination in membership selection on the bases of race, color, gender, national origin, age, religion, creed, disability, veteran’s status, sexual orientation, gender identity or gender expression.
6.4 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the respective parties hereto. The Member has an affirmative obligation to advise the Pivotal Group in writing within thirty (30) days of the occurrence of any change in control of the Member, any acquisition of the Member or any interest therein by any other party, any merger or consolidation of the Member with any other entity, and any transfer by the Member to any person or other entity of all, or substantially all, of the Member’s assets.
6.5 Amendment. This Agreement may not be altered, amended or modified except by written instrument signed by the parties hereto, provided, however, that as provided above, the Pivotal Group may unilaterally amend or modify from time to time, the pricing, terms of payment and credit provisions applicable to goods and supplies sold to member pursuant to this Agreement, upon advance written notice to Member.
6.6 Governing Law. All matters relating to the interpretation, construction, validity and enforcement of this Agreement shall be governed by the internal laws of the state of Texas, without giving effect to any choice of law provisions thereof.
6.7 Attorney’s Fees and Costs. In the event legal action, including arbitration, mediation and/or litigation, is undertaken to enforce any of the terms and conditions of this Agreement, the prevailing party shall be entitled to recover from the other, all fees and costs incurred, including reasonable attorney’s fees.
6.8 Severability. The determination by a Court of proper jurisdiction that any provision of this Agreement is invalid shall not affect the enforceability of the remaining provisions of this Agreement.
6.9 Entire Agreement. This Agreement represents the entire understanding between the parties on the matters herein contained and there have been no oral representations or agreements relied upon by the Member.
6.10. Representation. Signer of the Pivotal Group Membership Agreement affirms they have, or have been given authorization by the owner(s) of the member business, to enter the office(s) into this binding agreement.