Physicians Direct, LLC

Physicians Direct

Terms of Service

PLEASE READ THE FOLLOWING TERMS OF SERVICE ("TOS") CAREFULLY AS SUCH TERMS OF SERVICE GOVERN YOUR MEMBERSHIP IN PHYSICIANS DIRECT ("PDR" AND/OR THE "COMPANY") AND ALL SERVICES OFFERED THROUGH PDR INCLUDING, BUT NOT LIMITED TO, THE PURCHASE OF PRODUCTS AND SERVICES, ACCESS TO THE PDR WEBSITE AND ACCESS TO CONTENT AND THIRD PARTY WEBSITES AFFILIATED WITH PDR. BY ACCEPTING THE TERMS AND CONDITIONS SET FORTH BELOW, YOU ARE ACCEPTING MEMBERSHIP IN PDR AND HEREBY GRANTED ACCESS TO CONTENT ON THE PDR WEBSITE (the "Site" or "Website").

Membership in PDR, access to and use of the PDR website are subject to the following terms and conditions and other applicable law. If you do not agree to these terms and conditions and do not wish to be a member of PDR, please do not click "Agree" review any content or use the site in any manner whatsoever. PDR reserves the right to update or change these TOS at anytime by posting the most current version of the TOS on the website. Your continued use of your membership privileges and use of the Site after we post any changes to the TOS signifies your agreement to any such change. If you do not agree to these TOS, you must immediately discontinue use of the Site and terminate your membership in Physicians Direct.

Purpose

PDR provides medical professionals with discounts on medical supplies, equipment, software, health information technology products, computer equipment, office supplies and services, among other products. PDR creates customized benefit packages for Physician Associations as well as individual doctors and other medical professionals, completely free of charge. Members may also be provided with links to the shopping carts of various third party vendors and suppliers through the Site, as well as information that is pertinent to the medical community. All Third Party affiliates will have access to a roster of all members so membership discounts will automatically be applied regardless of purchase method. Purchases can be however each member is currently procuring supplies, products and services or by any other method they so choose. Use of the Site and services provided to members is void where prohibited.

Proprietary Rights

The entire content of this site, including, but not limited to graphics, text, logos, button items, icons, images, data compilation and all other materials (collectively, the "Marks") is owned by PDR or its licensors and is protected by copyright, patents, trademarks, trade secrets and/or other proprietary rights, including under the United States copyright laws. PDR owns a copyright in the selection, coordination, arrangement and enhancement of such content and a copyright in the Site. PDR Marks may not be used in connection with any product or service that does not belong to PDR, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits PDR. You agree not to use any Marks for any purpose at all without the appropriate prior written authorization of PDR, which may be withheld in the Company's sole discretion. You may not copy, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, any of the content, in whole or in part, without PDR's prior written consent or the appropriate third party owner's consent.

No License Granted

Except for allowing you to become a member of PDR and use the Site for its intended use, you understand and acknowledge that you are not receiving a license or any other rights from the Company, including, but not limited to any intellectual property or proprietary rights. By becoming a member, you are not an owner or equity holder in PDR or PDR, but only entitled to the membership-based benefits with regards to products and services set forth herein and provided on the Site.

No Membership Fees and Termination

Membership in the PDR is free of charge, though you must be a member to enjoy PDR's exclusive and discounted pricing for products and services. Any members may terminate their membership at any time by filling out the necessary information in the "opt-out" option on the Site. Access to the Site, as well as all membership and pricing benefits will cease to be available immediately upon cancelling membership. Only the individual who enters into this Agreement is entitled to the rights and membership benefits provided hereunder. In the event that PDR determines you are sharing your membership benefits with a non-member or in any other way violating this TOS, Company reserves the right to suspend and/or revoke your membership. Company's proprietary rights, disclaimer of warranties, indemnities, limitations of liability and miscellaneous provisions shall survive any termination of your membership.

Third Party Vendors Products and Services

PDR reserves the right to contract with third party vendors on behalf of its members in order to provide all discounted products and services to its membership. Member authorizes PDR as its agent to negotiate and enter into agreements with vendors as well as affiliate agreements on behalf of its members. You may order services, merchandise or other products through the PDR affiliates (collectively, the "Third Parties") directly, through links on the Site or through individual vendor sales representatives. All matters concerning the services, merchandise and other products desired from the Third Parties, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Third Parties. PDR makes no warranties or representation whatsoever with regard to any services, merchandise or other products sold by the Third parties. You will not consider PDR, and we will not be construed as, a party to such transactions, whether or not we may have received some form of revenue or other remuneration in connection with such transactions, and we will not be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transactions.

Compliance

Member shall comply with applicable laws and regulations, including 42 U.S.C. § 1320a -7b(b)(3)(A) and the discount "safe harbor" regulation set forth at 42 C.F.R. § 1001.952(h). Any discounts provided are considered a discount off the purchase price that needs to be reported and or reflected in Member's records of its acquisition costs to the extent required by applicable federal or state law.

Modifications of Products and/or Services

PDR may add, modify, discontinue and/or terminate any of the Products, Product Websites, Services and or Content, or any portion thereof, for any reason, at any time, at Company's sole and absolute discretion.

Communications from PDR

By accepting these TOS and becoming a member of PDR, you will receive electronic communications from the Company from time to time with regards to your purchase of products or services as well as other communications, not to be excessive.

Governing Law, Jurisdiction and Venue

This Agreement shall be governed by, and construed in accordance with, the laws of the State of Nevada, without giving effect to its conflict of laws provisions or your actual state or country of residence. The parties agree to submit to the personal and exclusive jurisdiction of the courts located in the County of Clark, Nevada. In any litigation, arbitration or other proceeding relating to this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys' fees.

If for any reason a court of competent jurisdiction finds any provision or portion of the Agreement to be unenforceable, the remainder of the Agreement will continue in full force and effect. You shall not assign Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without PDR's prior written consent. Any such purported assignment or delegation will be null and void and of no force or effect. The provisions of this Agreement shall be deemed to be the result of arms length negotiations between and among the parties, and it shall not be construed strictly for or against any party.

Arbitration

YOU UNDERSTAND AND AGREE THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND PDR, INCLUDING BUT NOT LIMITED TO PDR's PARENTS, AFFILIATES, SUBSIDIARIES, MANAGERS, OFFICERS, DIRECTORS, OWNERS AND EMPLOYEES, RELATED COMPANIES, AND/OR ANYONE ELSE ACTING ON BEHALF OF PDR, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO CLAIMS IN TORT OR CONTRACT LAW, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION THROUGH ADR SERVICES, INC OR A COMPARABLE ARBITRATION ASSOCIATION AS MAY BE DETERMINED BY THE MUTUAL CONSENT OF THE PARTIES OR BY AN ARBITRATOR. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY ANY STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT ("FAA"). NEITHER YOU NOR PDR SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL.

No Warranty by PDR

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE PRODUCTS, PRODUCT WEBSITES AND/OR CONTENT IS ENTIRELY AT YOUR OWN RISK. ALL PRODUCTS, PRODUCT WEBSITES AND/OR CONTENT ARE PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS WITH NO WARRANTIES WHATSOEVER. PDR AND ITS SUPPLIERS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE INFORMATION CONTAINED IN THE PRODUCTS, PRODUCT WEBSITES, CONTENT OR OTHER MATERIALS YOU MAY RECEIVE FROM PDR DO NOT CONSTITUTE LEGAL, TAX, ACCOUNTING OR OTHER PROFESSIONAL ADVICE. OTHER THAN THE ITEMS EXPRESSLY AND CLEARLY SET FORTH IN THESE TERMS AND CONDITIONS, PDR MAKES NO WARRANTY THAT: (I) THE PRODUCTS WILL BE PROVIDED ERROR-FREE; (II) THE EXECUTIONS, EFFECTIVENESS, SUCCESS OR RESULTS OF ANY AND ALL THIRD PARTY VENDORS CONTRACTED BY PDR TO PROVIDE SERVICES TO YOU; AND, (III) ANY RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCTS OR CONTENT WILL PROVIDE FOR ANY COST SAVINGS BENEFIT OR BE RELIABLE IN NATURE.

Indemnity

You agree to defend, indemnify, and hold harmless PDR from and against any third party claim arising from or in any way related to your use of the Products, Product Websites, Services and/or Content, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature.

Limitation of Liability

UNDER NO CIRCUMSTANCES WILL PDR BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING FROM OR IN ANY WAY CONNECTED TO YOUR ACCESS AND USE OF, OR INABILITY TO USE, THE PRODUCTS, PRODUCT WEBSITES, CONTENT OR MEMBERSHIP BENEFITS, OR FROM YOUR ACCESS TO, USE OF, INABILITY TO USE, OR RELIANCE UPON ANY OF THE PRODUCTS, EVEN IF PDR HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. SOME JURISDICTIONS EITHER DO NOT ALLOW OR PLACE RESTRICTIONS UPON THE EXCLUSION OR LIMITATION OF DAMAGES IN CERTAIN TYPES OF AGREEMENTS; FOR THESE JURISDICTIONS, THE AFOREMENTIONED LIMITATION ON LIABILITY SHALL APPLY TO THE MAXIMUM DEGREE PERMITTED BY APPLICABLE LAW. IF, NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED UPON PDR, THEN YOU AGREE THAT PDR'S TOTAL LIABILITY TO YOU FOR ANY AND ALL OF YOUR LOSSES OR INJURIES DETERMINED TO BE A DIRECT RESULT OF PDR'S ACTS OR OMISSIONS, REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE CLAIM, SHALL NOT EXCEED THE COMBINATION OF: (I) THE AMOUNT PAID BY YOU TO PDR FOR THE PRODUCT(S) YOU PURCHASE DIRECTLY FROM PDR AND (II) YOUR MEMBERSHIP FEES IN PDR. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL PDR BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, TERRORISM (FOREIGN OR DOMESTIC), GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING.

Notices

All notices or other communications to PDR hereunder shall be in writing, delivered by: (i) email transmission, (ii) by courier, or (iii) by overnight mail. Notice shall be deemed given when verifiably delivered to the address specified below or such other address as may be subsequently specified in a written notice in accordance with this Section.

Physicians Direct, LLC 2595 Fremont Street Las Vegas, NV 89104

PDR may provide you with notices regarding the Products and Services, Product Websites, and/or Content or these Terms and Conditions by regular mail, email, or postings to this PDR Website.

Entire Agreement/Miscellaneous

These Terms and Conditions and other policies PDR may post as set forth herein constitute the entire Agreement between PDR and you in connection with your use of the Product Websites (if applicable), the Products, and the Content, and supersede any prior versions of the Terms and Conditions, if applicable. PDR may update these Terms and Conditions from time to time by posting revised Terms and Conditions on this Website or the Product Websites without notice to you, and your subsequent use of the Products, Services, Product Web Sites, and/or Content is governed by those new Terms and Conditions. The Terms and Conditions are effective until terminated by PDR or as otherwise set forth in this Agreement. In the event of termination, the Copyrights, Trademarks, Disclaimers, Governing Law, Jurisdiction and Venue, Arbitration, and Limitations of Liability provisions set forth in these Terms and Conditions will survive. In the event of a conflict between any other notice, policy, disclaimer or other term contained in this or any Product or Service Websites or otherwise, these Terms and Conditions will control. The section headings are for convenience only and do not have any force or effect.

This Letter of Commitment (LOC) is made between Sterling Healthcare Logistics, LLC (SHL) and SHL Member as of the 17th day of August, 2019.

Member wishes to access the supply and services agreements within the Sterling Healthcare Logistics Program, and accordingly the parties agree as follows:

1. Authorization: Member authorizes SHL and Physicians Direct and/or its affiliates as its agent to negotiate and enter into agreements with vendors as well as affiliate agreements such as Group Purchasing Organizations on its behalf. Member additionally authorizes Physicians Direct to execute vendor letters of commitment on its behalf so that Member can access more favorable pricing provided no additional commitments are imposed upon Member (other than those already agreed to by Member).
2. Letter of Commitment (LOC). This LOC provides the SHL contracted vendors with notification of the Member's intent to commit to purchasing the products for their practice through the Physicians Direct purchasing program.
3. Term. The initial term of this LOC 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 LOC will automatically renew for successive one (1) year periods unless otherwise terminated in accordance with the termination provision provided herein.
4. Termination. Either party may terminate this LOC, with or without cause, by providing 90 days written notice to the other party. The Member may, upon 90 days written notification to Physicians Direct, terminate their use of any or all supply and services agreements within the Physicians Direct program as covered by this LOC. Member understands that upon termination of this LOC, member will no longer receive the negotiated benefits of a Physicians Direct member.
5. Confidentiality. Member agrees to keep the terms of this agreement and any agreements related to the Physicians Direct program confidential.
6. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE), EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Comply With State and Federal Laws. Negotiations to which SHL engages on behalf of Member shall be consistent with and not in violation of any and all applicable law, statutes, and regulations including, but not limited to all state and federal requirements and any amendments thereto, the Medicare self-referral prohibitions (more commonly known as the Stark laws), the federal anti-kickback statutes, and such other laws and regulations that may be enacted during the Term of this Agreement and any extensions thereof regulating the resale of goods and services to members of the medical community. PDR agrees that it will act in compliance with the Group Purchasing Safe Harbor of the Federal Anti-Kickback Law, 42 C.F.R.Section 1001.952(j) as it may be amended from time to time ("Safe Harbor").
8. Physicians Direct Marketplace. During the term of this agreement Member will have access to the Physicians Direct Marketplace to access pre-negotiated and loaded discounted pricing. The PD Marketplace is an online application developed to provide savings to all PD Members based on the aggregated spend of all Members.
9. Products for Own Use: Member agrees to use the products purchased for its own use and not resell them. Member shall permit the manufacturers, wholesalers and distributors to report purchasing data to vendors, and will permit vendors reasonable access to provide information or service materials.
10. Administrative Fees: SHL represents that payments to SHL may be made by Vendors with which SHL negotiates prices for Supplies and Services as permitted by all state and federal regulations, including but not limited to those set forth in section 8 above ("Administrative Fees"). SHL shall disclose all such Administrative Fees to Member, as required by this Agreement. The parties agree to disclose fees collected as required by law. In addition, in the event that the Administrative Fees paid to SHL shall be required by state or federal law to disclose to the state or federal government, or other entity regulating the transactions contemplated by this Agreement or otherwise comply with the Law, then SHL shall immediately make such required disclosures, shall immediately notify Member that it is making a required disclosure, provide to Member all copies of materials sent to the requesting authority, and otherwise comply with such requests at its own cost and expense.
11. Maximum Administrative Fee. SHL may collect the Maximum Administrative fee permitted by law. The Administrative Fee which ordinarily will not exceed three percent (3%) which is payable to SHL from Vendors including Group Purchasing Organizations ("GPO") for Supplies and Services sold to Member shall not exceed 6 percent (6%) of the gross sales price of each individual product or service sold to Member or the maximum permitted by law or regulation. SHL shall disclose the Administrative Fee paid by each Vendor to SHL with respect to purchases made by Member on at least an annual basis.
12. Negotiated Services Savings Fee: Member may request Company to negotiate on behalf of Member specific contracts on products, services and capital equipment. In the event that Company negotiates at Member's request on specific contracts on products, services and capital equipment, Member shall pay to Company a fee of ten percent (10%) of the financial savings negotiated by Company as compared to the amount paid by or quoted to Member for the same products and services prior to the request for Negotiated Services. Member must provide, in writing, the details of the then current status of their negotiations along with prices of the products, services and equipment that Member has received, or is currently paying. This Negotiated Services Savings Fee shall apply to all monies saved by Member during the entire vendor contract term as a result of the negotiated savings by Company. Member shall pay ten percent (10%) of the aggregate savings of the entire negotiated vendor contract. The Negotiated Services Savings Fee will be billed within 30 days of the completed Vendor contract negotiation and will reflect the fee of ten percent (10%) of the overall vendor contract savings. Payment for these invoices are due upon receipt.
    
    By Signing below, you acknowledge that you are committing your practice to purchase their supplies and services through the Physicians Direct Purchasing Program managed by Sterling Healthcare Logistics, LLC.