Teeth Power, Inc.

GPO PARTICIPATION Agreement

This Membership Agreement (the “Agreement”) is entered into by and between Teeth Power, Inc., a Delaware Corporation (“Teeth Power”) and the undersigned entity (“Member”) as of the date set forth above (the “Effective Date”).  Teeth Power and Member are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

WHEREAS, Teeth Power is a group purchasing organization (“GPO”), which negotiates vendor agreements on behalf of its participating dentist office members (the “Members”) with the purpose of obtaining discounted pricing on dental products and services for these Members.

WHEREAS, Member desires to retain Teeth Power as its GPO as of the Effective Date in accordance with the terms of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained herein and for other good and valuable consideration, the Parties hereby agree as follows:

1. Membership.
   1. Subject to the terms and conditions of this Agreement, Member hereby engages Teeth Power as its GPO to negotiate and enter into contracts for the provision of goods and services (the “Vendor Contracts”) by vendors, including manufacturers, distributors, or other third parties (the “Vendors”) on behalf of Member.   
   2. Teeth Power shall furnish GPO services to Member, including, for example, assessing the needs of Members and their patients, identifying quality products, preparing requests for proposals, analyzing responsive bids, and negotiating Vendor Contract terms on behalf of the Member.  Teeth Power shall enter into such Vendor Contracts with such Vendors as it determines, in its sole discretion.
   3. Member hereby authorizes Teeth Power, as the authorized agent for Member and in Member’s name, to:  (a) negotiate the terms of and enter into Vendor Contracts, and to cancel, amend, or modify any Vendor Contracts as Teeth Power deems necessary, advisable, or appropriate; (b) receive from Vendor and/or from third-party organizations – including other GPOs, distributors, and/or e-commerce companies – data relating to purchases of products and services under Vendor Contracts by Member; and (c) in Teeth Power’s sole discretion, share in any administrative and other fees arising from any purchases made by Member pursuant to any Vendor Contract.  
   4. Pursuant to the Vendor Contracts, Member, on a non-exclusive basis (a) may purchase products and services available under such Vendor Contracts for use by Member, and/or (b) participate in other GPOs or arrangements under which Member may be able to gain access to services or purchase products and services from Vendors with which Teeth Power does not have Vendor Contracts. 
   5. Active Vendor Contracts will be listed on the Teeth Power website, which will be updated by Teeth Power from time to time.  Teeth Power shall provide Member with a copy of all Vendor Contracts available for Member’s participation upon written request by Member.  Each Vendor will determine Member’s eligibility to purchase under a Vendor Contract.  Members may view product prices through the Teeth Power website (Members’ only section) for the Members’ confidential review.  Member may purchase products and services directly from the applicable Vendor or the designated distributor under each Vendor Contract in which Member elects to participate. 
2. Limitation of Liability. 
   1. Member acknowledges and understands and the Parties agree that Member will be solely responsible for product payments and compliance with all other obligations in Member’s capacity as the purchaser under each Vendor Contract.  Member hereby expressly releases and holds harmless Teeth Power from any liability or claims whatsoever with respect to Member’s actions and obligations under each Vendor Contract. 
   2. Member further acknowledges and understands and the Parties agree that Teeth Power is not responsible for and has no liability for the fulfillment of any Member orders made pursuant to any Vendor Contract, including, without limitation, the provision of products in accordance with the specifications of Member orders, and product shipment and/or delivery.  The Parties also agree that Teeth Power is not responsible and has no liability for damaged products, defective products, harm caused by any products, and/or the failure of Vendors to abide by return policies, warranties, and/or any other policies and procedures applicable to customers.  The Parties further agree that Teeth Power is not responsible and has no liability for any failure of Vendors to apply the correct price and/or discount to any product under the applicable Vendor Contract.  Member hereby expressly releases and holds harmless Teeth Power from any liability or claims whatsoever with respect to Vendor’s actions and obligations under each such Vendor Contract.
3. Mutual Obligations.
   1. Confidentiality. 
      1. Confidential Information.  As used in this Agreement, “Confidential Information” shall mean all non-public or proprietary information treated as confidential by a Party, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, including but not limited to the terms of this Agreement and the proposed and actual Vendor Contract prices and terms and conditions.
      2. Obligations.  Each Party shall hold all Confidential Information in confidence and in accordance with any applicable provision of the Vendor Contracts.  The Party receiving (the “Receiving Party”) Confidential Information of the other Party (the “Disclosing Party”) shall not disclose such Confidential Information to any person or entity without the prior written consent of the Disclosing Party; provided, however, that the foregoing shall not apply to information which (i) is generally available to the public or was already known at the time of the disclosure, as evidenced by a Party’s written records; (ii) becomes available on a non-confidential basis from a source other than the Disclosing Party, which source was not itself bound by a confidentiality agreement; (iii) is required to be disclosed by Law (as defined in Section 3.3 below), or any governmental or regulatory authority, provided that the Receiving Party provides reasonable prior written notice of such disclosure and uses all reasonable efforts to minimize the extent of such disclosure.  Each Party shall use Confidential Information solely for that Party’s performance of this Agreement, and, upon the termination of this Agreement, or at the request of the other Party, will return or destroy all materials containing any portion of the Confidential Information; provided, however, that one (1) copy of the Confidential Information may be retained for the sole purpose of monitoring a Party’s ongoing obligations under this Agreement, and there shall be no obligation to destroy any Confidential Information retained in a Party’s electronic computer storage systems or backups or archival storage thereto.  The Disclosing Party shall be entitled to injunctive relief to prevent a breach or threatened breach of this Section, in addition to all other remedies that may be available.  This Section shall survive termination or suspension of this Agreement.
      3. Required Disclosure.  The Receiving Party may disclose the Disclosing Party’s Confidential Information under applicable federal, state, or local Law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction, provided that the Receiving Party shall first make commercially reasonable efforts to provide the Disclosing Party with:  (i) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (ii) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
   2. Indemnification.  To the extent permitted by Law, each Party shall indemnify, defend, and hold harmless the other Party, and its shareholders, directors, officers, agents, affiliates, employees, successors, and assigns from and against any and all losses, claims, liabilities, shareholders, lawsuits, costs, damages, and expenses whatsoever, including reasonable attorneys’ fees and court costs, arising out of, incident to, or in any manner occasioned by or attributable to:  (a) its own breach of any representation, warranty, covenant, or obligation set forth in this Agreement; (b) its own intentional or negligent act or omission, or that of its employees, contractors, or agents in the performance of this Agreement; or (c) its own violation of any applicable Law.
   3. Compliance with Law.  Each Party acknowledges and agrees that this Agreement is subject to, and intended to comply with, all federal, state, and local constitutional provisions, laws, rules, regulations, ordinances, orders, judgments, and decrees issued or promulgated by judicial, governmental, or regulatory authority (collectively, “Law”) applicable to this Agreement.  Specifically, but not exclusively, the Parties acknowledge and agree that they enter into this Agreement with the intent of conducting their relationship in full compliance with 42 U.S.C. § 1320a-7b (the “Anti-Kickback Statute”) and its applicable state law counterparts, as each may be amended from time to time, and each Party acknowledges and agrees that it will fully comply with:  (a) the reimbursement requirements under any federal or state governmental payment program, including but not limited to Medicare or Medicaid programs; (b) the applicable requirements and conduct prohibitions of the federal Medicare and Medicaid statutes, including 42 U.S.C. §§ 1320a-7, 1320a-7(a) and 1320a-7b, the regulations promulgated thereunder, and their applicable state law counterparts, as each may be amended from time to time; and (c) the provisions of section 340B of the Public Health Service Act (42 U.S.C. § 256b).  Each Party represents and warrants to the other Party that it shall not knowingly violate any such Laws by entering into this Agreement or performing its obligations hereunder.
   4. Records/Audit.  Each Party to this Agreement will maintain all information related to its performance under this Agreement in a current, detailed, organized, and comprehensive manner and in accordance with customary industry practice and applicable Law.  Each Party will maintain such records in readily accessible form, for a period of at least six (6) years from the applicable service date, or to the extent required by applicable Law, whichever is longer.  Upon Teeth Power giving Member reasonable notice, Member shall provide Teeth Power reasonable access to such records to audit Member’s compliance under this Agreement or to assist Teeth Power’s efforts to audit Vendors.
   5. Exclusions.  Each Party hereby represents and warrants to the other that:  (a) it is not currently excluded, debarred, or otherwise ineligible to participate in any federal health care program as defined in 42 U.S.C. § 1320a-7b(f) (the “Federal Healthcare Programs”); (b) it has not been convicted of a criminal offense related to the provision of health care items or services and not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal Healthcare Programs, and (c) it is not under investigation or otherwise aware of any circumstances which may result in the Party being excluded from participation in the Federal Healthcare Programs.  This shall be an ongoing representation and warranty during the term of this Agreement, and each Party shall immediately notify the other of any change in the status of the representations and warranties set forth in this Section (the “Exclusion Notice”).  Any breach of this Section by a Party shall give the other Party the immediate right to terminate this Agreement.                 
4. Member Obligations.
   1.  Anti-Kickback Compliance.  With respect to its purchases under Vendor Contracts and/or Vendor rebates it receives from Teeth Power or directly from Vendors, Member agrees to comply with the terms of 42 C.F.R. § 1001.952(h)(1) and any applicable state law counterparts, as may be amended form time to time.  By signing this Agreement, Member specifically acknowledges notice of this regulation’s reporting and information provision obligations.            
   2. Non-Diversion/Own Use.  Member hereby represents that every purchase of a product subject to the requirements of § 340B of the Public Health Services Act (a “340B Product”) made by Member through any Vendor Contract shall be for Member’s ultimate consumption or “Own Use,” and not for resale, as defined in Abbot Labs v. Portland Retail Discount Druggist Association, Inc., 425 U.S. 1 (1976), and its successor line of cases (“Own Use”).  Member shall report any known breach of this Section 3.3 immediately to Teeth Power.  In furtherance, but not in limitation of, the foregoing, Member hereby agrees to the following regarding 340B Products at all times:  
      1. Access to Vendor Contracts is limited solely to Members, and Member will use all products purchased under all Vendor Contracts in which Member participates solely for Member’s own patients who meet all eligibility requirements under the Vendor Contract and all applicable Law.  Member will not divert, deliver, transfer, distribute, or sell any 340B Product purchased under any Vendor Contract to any wholesaler, distributer, or other person or entity without specific, written permission from Teeth Power and the applicable Vendor.  
      2. In the event Member fails to comply with the provisions of this Section, Member shall be liable for all losses or costs incurred by Teeth Power, the applicable Vendor, and any other applicable manufacturers and distributers as a result of such failure, including, but not limited to, the costs of lost sales or payments that the applicable Vendor and/or other manufacturer and distributor may need to pay to their respective partners on account of such failure.  In addition, Teeth Power may require repayment by Member of any and all payments or benefits provided herein.  
   3. Member Representations.  Throughout the term of this Agreement Member agrees:  (a) to comply with all terms and conditions of this Agreement; (b) to comply with all Teeth Power’s standard operating procedures and policies established and in effect from time to time and either provided to Member or posted on the Teeth Power’s website; (c) to comply with all terms and conditions of the Vendor Contracts (and any local supplements or other contracts between Member and Vendor or third parties relating to the Vendor Contracts), that are consistent with Member’s obligations under applicable law, including without limitation, payment terms, eligibility requirements, own use requirements, liability provisions, and arbitration of dispute requirements; (d) to remain duly licensed under applicable state law to engage in Member’s business, and certified to participate in the Medicare and Medicaid programs; (e) to comply with all Laws applicable to its performance under this Agreement; and (f) to execute separate agreements or acknowledgements as requested by Teeth Power or any particular Vendor evidencing Member’s agreement to comply with the terms of the relevant Vendor Contracts.
5. Fees.
   1. Administrative Fees.  Teeth Power is a “group purchasing organization” that is structured to comply with the requirements of the “safe harbor” regulations regarding payments to group purchasing organizations set forth in 42 C.F.R. § 1001.952(j).  Teeth Power shall have the right to receive an administrative fee formulated in the manner set forth in this Section below.  
   2. Administrative Fees Paid by Vendors.  At its option, Teeth Power may charge a Vendor an administrative fee that equals a percentage of the purchase price of the products or services sold to Member under the applicable Vendor Contract, but only in accordance with the following:
      1. Teeth Power may receive from a Vendor a fee equal to three percent (3%) or less, or, if the fee is greater than three percent (3%), Teeth Power will specify the exact percentage to Member; and  
      2. Teeth Power will disclose to Member in writing at least annually, and to the Secretary of the United States Department of Health and Human Services upon his or her request, the amount it received from each Vendor with respect to purchases made by or on behalf of Member.  
6. Data Provision and Analysis.
   1. Member grants to Teeth Power, and its affiliates and their respective employees, agents, and subcontractors, a nonexclusive perpetual, irrevocable, worldwide commercial license and right to use, combine, and match with other data, manipulate, analyze, modify, display, include in analytical data products, license, sublicense, sell, or transfer, any data gathered or provided to Teeth Power as part of Member’s participation in the Program for all lawful business purposes whatsoever, including, but not limited to, for marketing, sales, licensing and sublicensing, promotion, and analysis; provided that no data provided hereunder may be used to identify or to attempt to identify an individual or for any unlawful purpose.  
   2. Subject to any applicable confidentiality agreement, Member hereby authorizes Teeth Power to have access to Member’s purchasing transaction data, whether through or from Vendors, distributors, group purchasing organizations, or any business-to-business e-commerce companies through which orders for Supplier products and services are placed by Member.  Member further authorizes Teeth Power to provide such purchasing transaction data to Vendors for the purposes of improving product and service offerings available for purchase under a Vendor Contract, provided no portion of the data contains any patient health information the disclosure of which would violate applicable Law.  
   3. Teeth Power may request no more often than quarterly that Member provide Teeth Power with Member’s historical purchasing data for the previous six (6) months and the projected purchasing requirements for the next twelve (12) months as requested by Teeth Power.  Member will use its best efforts to provide this information no later than thirty (30) days after the date of the request.  Subject to any applicable confidentiality agreement, such historical purchasing transaction data will include data related to purchases of Vendor products and services both under and not under Vendor Contracts.
   4. Subject to any applicable confidentiality agreement, Member agrees to use its best efforts to provide Teeth Power pricing information and other terms offered to Member outside of Vendor Contracts by Suppliers, distributors, group purchasing organizations, or other third parties for Vendor products and services.  
   5. Member shall utilize best efforts to provide Teeth Power with a complete response to any reasonable survey request provided to Member by Teeth Power within thirty (30) days of a request by Teeth Power.
7. Warranties and Limitation of Liabilities.
   1. WARRANTY.  TEETH POWER MAKES NO GUARANTEES AS TO MEMBER’S EXPERIENCE OR SATISFACTION WITH ANY VENDOR AND MAKES NO REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE GOODS OR SERVICES TO BE PROVIDED BY A VENDOR HEREUNDER, WHETHER EXPRESS OR IMPLIED, AND INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT AGAINST ANY THIRD PARTY PATENT OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY, AND ANY WARRANTY ARISING OUT OF PRIOR COURSE OF DEALING OR USAGE OF TRADE.  WHILE TEETH POWER USES REASONABLE EFFORTS TO ENSURE THAT THE PRICING, PRODUCT INFORMATION, AND OTHER INFORMATION AVAIALBLE TO MEMBER THROUGH ITS TECHNOLOGY APPLICATIONS IS CURRENT AND ACCURATE, TEETH POWER CAN NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF IT.  
   2. LIMITATION OF LIABILITY.  IN NO EVENT SHALL TEETH POWER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REGARDLESS OF THE FORM OF ACTION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER DUE TO BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE, OR OTHERWISE.  THE ENTIRE LIABILITY OF TEETH POWER FOR ANY ACTION, CLAIM, OR CAUSE OF ACTION WHATSOEVER, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, WARRANTY, TORT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE ADMININSTRATIVE FEES RECEIVED BY TEETH POWER FROM VENDORS THAT RESULTED FROM MEMBER’S PURCHASES UNDER VENDOR CONTRACTS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEEDING THE DEFAULT.  
8. Dispute Resolution. 
   1. Informal Dispute Resolution.  Except for matters subject to emergent or injunctive relief, in the event that any dispute, controversy, or claim arising out of, relating to, or in connection with this Agreement (each, a “Dispute”) arises between the Parties, either Party may by written notice (a “Dispute Notice”), pursuant to Section 10 below, call an in-person or telephone meeting regarding such Dispute, to be attended by at least one (1) senior executive of each Party with authority to bind the Party to a resolution who shall attempt in good faith to resolve the dispute.  Such negotiation shall take place no later than thirty (30) days after delivery of a Dispute Notice, and the Parties shall negotiate in good faith to resolve the Dispute.
   2. Arbitration.  If the Parties are unable to resolve any Dispute within ninety (90) days after the commencement of negotiations pursuant to Section 8.1 herein, the Dispute shall be finally and fully settled by binding arbitration, which, except as otherwise provided in this Section 8.2, shall be the sole and exclusive method for resolving all Disputes under, arising out of, related to, or in connection with this Agreement, including the subject matter hereof, any amendment hereto, or the performance, termination, interpretation, validity, or breach of this Agreement, or the arbitrability of any such controversy, claim, or dispute, provided, however, that this Section 8.2 shall not apply to Disputes related to the ownership of Intellectual Property.  Such arbitration shall take place in Los Angeles, California, in a proceeding administered by the Los Angeles, California, office of the American Arbitration Association (“AAA”) in accordance with the Commercial Dispute Resolution and Procedures of the Arbitration Rules (the “Rules”) of the AAA.  The arbitration will be conducted by a single arbitrator jointly appointed by the Parties; provided, however, that if the Parties fail after good faith negotiation to agree on the arbitrator within thirty (30) days after one Party’s call for arbitration, the arbitrator will be appointed by the AAA in accordance with the Rules.  Disputes about arbitration procedure will be resolved by the arbitrator.  The arbitrator may proceed to an award notwithstanding the failure of either Party to participate in the proceedings.  Discovery will be limited to the mutual exchange of documents relevant to the Dispute, controversy or claim, as well as depositions; provided, however, that more than two depositions per Party will not be permitted unless the Parties otherwise agree or unless compelling need is demonstrated to the arbitrator.  The arbitrator will be authorized to grant interim relief, including to prevent the destruction of goods or documents involved in the Dispute and to provide for security for a prospective monetary award.  Except for liability for indemnification, breach of confidentiality, or infringement or misappropriation of intellectual property rights, under no circumstances will the arbitrator be authorized to award punitive or multiple damages, and any purported award of punitive or multiple damages or of other damages not permitted under this Agreement will be beyond the arbitrator’s authority, void, and unenforceable.  The arbitrator will render his or her decision within thirty (30) days following the date of the initial evidentiary arbitration hearing and will set forth a statement of facts, his or her conclusions of law, and his or her reasoning in writing.  The prevailing Party will be entitled to recover from the non-prevailing Party, as determined by the arbitrator, all of its costs and expenses, including reasonable fees and costs of attorneys and experts and the fees and costs of the arbitrator.  The decision of the arbitrator will be final and binding.  The prevailing Party will be entitled to apply to, and obtain from, a court or tribunal having jurisdiction, an order enforcing the arbitrator’s decision. 
   3. Equitable Remedies.  Notwithstanding anything contained in this Section 8 to the contrary, each Party hereto acknowledges that a breach or threatened breach by such Party of any of its obligations under Sections 1-4 of this Agreement would give rise to irreparable harm to the other Party, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by such Party of any such obligations, the other Party hereto shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach (which neither Party waives by the exercise of any rights hereunder), be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, reformation of contract, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).  For any such proceeding, the United States federal courts sitting in or having jurisdiction over Los Angeles, California, will have exclusive jurisdiction.  The Parties hereby agree to submit to the personal jurisdiction of the United States District Court for the Central District of California in any such action.
9. Term and Termination.
   1. Term.  The term of this Agreement will commence on the Effective Date and shall remain in effect for two (2) years thereafter (the “Initial Term”), unless terminated earlier under the terms of this Agreement.  Thereafter, this Agreement will automatically renew for successive one (1) year terms (each, a “Renewal Term”).  Either Party may terminate this Agreement at the end of the Initial Term and at the end of each Renewal Term upon no less than ninety (90) days prior written notice. 
   2. Breach.  If a Party to this Agreement commits a material breach of this Agreement or a Vendor Contract, the non-breaching Party will be entitled to terminate this Agreement in accordance with the following:  (a) the non-breaching Party will give the breaching Party written notice of such breach; (b) the breaching Party will have thirty (30) days from the receipt of such notice to cure such breach; and (c) in the event the breaching Party fails to cure such breach, the non-breaching Party will be entitled to terminate the Agreement as of the end of such thirty (30) day period; provided, however, that if the non-breaching Party determines in its reasonable discretion that the breach is not curable, then the non-breaching Party may terminate the Agreement any time after giving written notice.
   3. Teeth Power may also terminate this Agreement immediately with written notice to Member in the event that Teeth Power determines, in its sole discretion, that (a) Member does not meet the minimum requirements for membership in the group purchasing organization; (b) is in breach of Section 3.3, Section 3.5, and/or Section 4 of this Agreement; or (c) if continuation of this Agreement may be detrimental to the operations of Teeth Power or the other Members. 
10. Miscellaneous.
    1. Notices.  Any notice or other communication required or permitted to be given pursuant to the terms and provisions of this Agreement shall be deemed given to the Party to be notified if in writing and sent by registered or certified mail, receipt requested, or nationally recognized courier (signature required) to such other Party’s address as set forth pursuant to this Section 10.1 and will be deemed delivered upon receipt as indicated by the date on the signed receipt.  If any notice is received after 5:00 p.m. on a business day where the addressee is located, or on a day that is not a business day where the addressee is located, then the notice will be deemed received at 9:00 a.m. on the next business day where the addressee is located.  Notices and payments will be sent to the contact information of each Party as provided in this Section 10.1 or to such other address as last provided to the other Party by written notice.

If to Teeth Power:

Teeth Power, Inc.

Office of General Counsel

232 S. Reeves Drive, Unit 106
Beverly Hills, CA 90212

If to Member:

To the physical address, fax number, and/or email address provided by Member during the Member sign-up process.

Any Party may change the address to which notices are to be sent by notice given in accordance with the provisions of this Section.

1. 1. Relationship of the Parties.  This Agreement does not create any franchise, joint venture, partnership or other similar legal relationship between Teeth Power and Member.  No Party has the authority to bind or act on behalf of the other Party except as otherwise specifically stated herein.  There are no third party beneficiaries of or to this Agreement. 
   2. Assignment.  Neither Party hereto may assign this Agreement or assign, transfer, or delegate rights or obligations under this Agreement, without the other Party’s prior written consent; provided, however, that Teeth Power may freely assign this Agreement to any affiliate, subsidiary, parent, or commonly-controlled entity of Teeth Power without the consent of Member.
   3. Entire Agreement.  Upon the Effective Date of this Agreement as set forth above, any previous membership agreement with respect to the subject matter hereof entered into by the Parties is hereby deemed null and void.  This Agreement and its exhibits embody the entire agreement between the Parties relating to the subject matter hereof and supersede any and all other discussions, understandings, and agreements, either oral or in writing, between the Parties relating to the subject matter of this Agreement. 
   4. Amendment.  This Agreement may only be amended, supplemented, or otherwise modified by means of a written instrument signed by an authorized representative of each Party and expressly providing for such modification.
   5. Waiver.  The fact that either Party does not avail itself of a right deriving from a breach by the other Party of any provision whatsoever of this Agreement will not prevent subsequent application of such provision and will not be regarded as a waiver of rights deriving from any other breach.  No waiver by any Party of any condition or term in any one or more instances shall be construed as a further or continuing waiver of such condition or term or of another condition or term.  No waiver shall be effective unless it has been given in writing and signed by the Party giving such waiver.
   6. Severability.  Each provision of this Agreement is intended to be and shall be deemed a severable unit.  If any court of competent jurisdiction determines that any portion of one or more of the provisions contained in this Agreement is invalid, illegal or unenforceable in any respect, such holding shall not affect the validity or enforceability of any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained in this Agreement.
   7. Further Actions.  Each Party agrees, to the extent reasonably requested by the other Party, to execute, acknowledge, and deliver such further documents, instruments, conveyances, and assurances and take such further actions as may be reasonably necessary or appropriate in order to carry out the express purposes and express intent of this Agreement.
   8. Advice of Counsel.  Each Party has consulted counsel of its choice regarding this Agreement, and each acknowledges and agrees that this Agreement shall not be deemed to have been drafted by one Party or another and will be construed accordingly.
   9. No Third-Party Beneficiaries.  This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
   10. Schedules and Exhibits.  All Schedules and Exhibits referred to in this Agreement are attached hereto and incorporated herein by reference.
   11. Headings.  The headings to the several Articles and Sections of this Agreement are not a part of this Agreement, but are included for convenience of reference and shall not affect its meaning or interpretation. 
   12. Extended Meanings.  In this Agreement:  (a) the word “including” shall be deemed to be followed by the phrase “without limitation” or like expression; (b) the singular shall include the plural and vice versa; and (c) masculine, feminine and neuter pronouns and expressions shall be interchangeable.
   13. Counterparts.  This Agreement may be executed in any number of counterparts (including via facsimile or electronic copy), each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement.  Execution of a facsimile or scanned copy will have the same force and effect as execution of an original, and a facsimile or scanned signature will be deemed an original and valid signature.  Counterparts may be delivered via facsimile, electronic mail, or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the Effective Date.

TEETH POWER, INC.

By:

Doug Johnson

Chief Executive Officer