GoProcure, Inc. (“GoProcure”) and its Client (“Client”) have entered into an Agreement (the “Client MSA”) to engage GoProcure as Client’s sourcing, procurement, and billing agent for goods and services provided by Sellers (“Seller(s)”).
Seller hereby appoints GoProcure as its billing and payment agent for Seller’s goods and services provided to Client. Seller agrees that GoProcure will be the sole billing agent for all goods and services provided by Seller to Client for purchase orders issued through the GoProcure Application.
SERVICE FEE As consideration of the services GoProcure provides Seller and Client through GoProcure Application or otherwise in accordance with the Client MSA, GoProcure will retain a Service Fee (“Service Fee”) which is a percentage of all Seller invoice amounts paid by Client against Purchase Orders issued to Seller for goods and services provided to Client. The Service Fee is as follows.
Two percent (2%) of all Seller invoice amounts paid by Client against Purchase Orders issued to Seller for goods and services provided to Client when the payment is made by GoProcure to the Seller with ACH.
Three percent (3%) of all Seller invoice amounts paid by Client against Purchase Orders issued to Seller for goods and services provided to Client when the payment is made by GoProcure to the Seller with Check.
There will be no Service Fee charged to Seller accepting credit card payments.
Payments will be issued to Seller by GoProcure within 10 days upon receipt of payment from the Client.
TAXES Seller will be solely liable for any Federal, State or local taxes based on or measured by Seller’s income or receipts. Neither Client nor GoProcure will have any obligation to withhold these taxes and shall be held harmless for any claims arising therefrom.
BILLING PROCEDURES Seller will comply with GoProcure’s billing and payment instructions and procedures, as set forth in this Section and as may be modified from time to time upon notice to Seller. Seller shall enter all Invoices for fulfilled orders through the GoProcure Seller Portal. Every billing period GoProcure will consolidate the invoice records it receives through the GoProcure Seller Portal and present Client with a consolidated invoice. Seller agrees not to submit invoices to Client for payment but instead agrees to be paid by GoProcure for Services rendered to Client based upon approved invoices in the GoProcure Seller Portal. GoProcure will issue payments to Seller amounts set forth in the Seller invoice less the Service Fee withheld by GoProcure pursuant to Section 3 of this Purchase Order within ten (10) business days after receipt of funds from Client for such invoices. Notwithstanding any provisions to the contrary, Client’s payment to GoProcure for Seller’s charges is a condition precedent to GoProcure’s obligation to pay Seller, and GoProcure shall be under no obligation to pay Seller’s charges unless and until Client pays GoProcure for same. In no event, shall Seller bill Client directly. Notwithstanding the foregoing, if Client disputes any amount charged by Seller for Seller’s goods and services, then GoProcure may withhold payment to Seller for such amounts or will be entitled to a credit against future payment obligations for such amounts. GoProcure will pay such disputed amounts to Seller upon resolution of any such dispute in favor of Seller.
In the event that:
GoProcure advances any funds to Seller and Client subsequently refuses to pay Seller’s charges or demands a refund of Seller’s charges, or
Client shall be adjudged insolvent or bankrupt and GoProcure is ordered to repay to Client any sums paid by Client to GoProcure because such payment is deemed a "preferential payment" under the United States bankruptcy laws or similar state insolvency laws, then GoProcure may offset such amounts against future Seller billings or demand prompt repayment of such amount from Seller. Seller acknowledges and agrees that Client, as a third-party beneficiary of this Purchase Order, may pursue repayment of preferential payments directly against Seller. Seller will address payment inquiries or disputes to GoProcure within 90 days from the end of the week during which the charges were incurred and will cooperate in resolving payment disputes related to Seller’s charges. Any payment disputes raised by Seller after such 90 day period will not be valid and will not be addressed by GoProcure or Client
RETURNS All returns of goods will be handled directly between Seller and Client. In case a Seller must refund the Client, a check will be issued by the Seller directly to Client. All returns, replacements, technical services and support shall be in accordance with the Seller’s standard commercial terms and conditions unless specifically stated by Client within the purchase order and must be handled directly by the Seller and independently from GoProcure.
SELLER RESPONSIBILITY Seller acknowledges that it is solely responsible for the quality and acceptability of all goods and services it provides to Client and that GoProcure will have no responsibility for evaluating, reviewing or qualifying such goods or services or ensuring their acceptability to Client.
LIMITATION OF LIABILITY In no event will GoProcure, its respective agents or suppliers be liable for any indirect damages, including loss of profits, loss of use, business interruption, loss of data, cost of cover or indirect, special, incidental, or consequential damages of any kind in connection with this purchase order or arising out of the, furnishing, performance, delay in delivery or use of the services provided by GoProcure under this purchase order, whether alleged as a breach of contract or tortious conduct, including negligence, even if GoProcure, client or their respective agents or suppliers have been advised of the possibility of such damages.
INDEMNITY Seller shall indemnify, defend, and hold harmless GoProcure and its Affiliates, Client and their respective shareholders, directors, officers, employees, suppliers and agents (“GoProcure Indemnitees”) from and against any claim, loss, damage, liability, demand, action, cost and expense (including reasonable attorneys’ fees and costs) arising out of or relating to:
Seller’s breach of this Purchase Order (including, without limitation, submission of false or misleading information by Seller);
sale, delivery, or lack of performance of any goods or service by Seller to Client;
Seller’s breach of a Client’s terms and conditions;
negligent acts or omissions or intentional misconduct of the Seller;
Seller’s failure to comply with applicable laws; or
claims of infringement or intellectual property misappropriation by any third party related to the actions of or omissions of Seller. Seller acknowledges and agrees that GoProcure shall have no liability whatsoever to Seller in connection with the acts or omissions of Client, any Client employee or agent, or any third party.
SEVERABILITY & CHOICE OF LAW. Every provision of this Purchase Order shall be construed to the extent possible, so as to be valid and enforceable. If any provision of this Purchase Order so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision shall be deemed severed from this Purchase Order, and all other provisions shall remain in full force and effect. This Purchase Order and the rights and obligations of the parties under this Purchase Order shall be governed by and construed in accordance with the laws of Georgia without giving effect to the principles thereof relating to the conflicts of laws.
ASSIGNMENT Seller may not assign this Purchase Order, in whole or in part, without the prior written consent of GoProcure. This Purchase Order shall be binding upon the parties hereto, and their successors, heirs and assigns, as permitted. Any permitted assignee shall be bound by the terms and conditions of this Purchase Order.
AUTHORITY Seller represents and warrants that it has full rights and authority to execute, deliver and perform its obligations under this Purchase Order including submitting bids, accepting purchase orders, delivering goods and services pursuant to a purchase order, and creating invoices.
INDEPENDENT CONTRACTOR Seller and GoProcure are independent parties. No agency, joint venture or other joint relationship is created by this Purchase Order. Except as provided herein, neither party shall have any liability or obligation to the other party with respect to such party’s services rendered for Client. Nothing contained herein shall be construed to create the relationship of principal and agent, or employer and employee, between Seller and GoProcure. Seller assumes full responsibility for and represents and warrants that it shall make any and all contributions, taxes and assessments with respect to Seller Personnel under all applicable federal, state and local laws (including withholdings from wages where required). GoProcure is not a party to any Client terms and conditions that Seller has agreed to with Client and GoProcure shall have no responsibility or liability in connection with the services or work performed by the Seller or the actions or omissions of Seller or the Client under the Client terms and conditions.
LAWS AND REGULATIONS Seller will comply with all laws and regulations of any nature governing its performance of this Purchase Order.
ENTIRETY This document shall be the entire understanding and agreement between the parties with respect to the subject matter set forth herein, and all prior agreements, understandings, covenants, promises, warranties and representations, oral or written, express or implied, not incorporated herein are superseded hereby. Seller shall not be entitled to modify or amend any term or provision of this Purchase Order without securing the written consent of an officer of GoProcure.
