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SAAS AGREEMENT

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PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOLUTION

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• By using the Solution (as defined below), clicking Agree, or electronically or manually signing an order form (if applicable), Customer (as defined below) agrees as of such date to be bound by this SaaS Agreement (“Agreement”) with GraphiteRx Inc. a Delaware corporation located at 501 Union Street, Suite 600F, Nashville, TN 37219 (“we”, “us” or “GraphiteRx”).

         GraphiteRx and Customer are sometimes referred to herein as “the parties”.

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• If you are agreeing to this Agreement on behalf of or for the benefit a company, organization, or other entity, or another individual, then you represent and warrant that you have the necessary authority to agree to this Agreement on behalf of that company, organization, other entity or individual, and the term “Customer” refers to that company, organization, other entity or individual.  If you are agreeing to this Agreement on your own behalf, then the term “Customer” refers to you.
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• If you do not have that authority, or if you do not agree to the terms of this Agreement, you must not accept this agreement and may not use the Solution.

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• If Customer or Customer’s group purchasing organization has a written agreement with GraphiteRx covering this subject matter, then that agreement applies instead of this Agreement.

 

• The Solution may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

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1. SOLUTION AND SUPPORT

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A.  Solution. Subject to the terms of this Agreement, GraphiteRx will use commercially reasonable efforts to provide Customer and its pharmacies access to the GraphiteRx SaaS solution for the management of direct pharmacy purchasing (collectively, the “Solution”) and all reasonable technical and customer support services in accordance with GraphiteRx’s standard practice, subject to the payment of fees by Customer, if any, as set forth in a separate order form, signed by the parties, if applicable. 

B.  Technical Support. GraphiteRx will provide Customer and its pharmacies with customer and technical support by phone, email and in-application chat in connection with the Solution during business hours. GraphiteRx’s current business hours, subject to change, are 8:30 AM to 6:00 PM Central Standard Time, Monday through Friday, excluding holidays.

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    2. SUPPLIERS

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A.  GraphiteRx aspires to work with any pharmacy supplier that Customer’s pharmacies purchase from outside of Customer’s full-line wholesaler relationship. However, GraphiteRx, in its reasonable discretion, may decline to work with or immediately cease (with prompt notification to Customer) to work with any supplier if (i) GraphiteRx has reason to believe that working with such supplier may (A) cause GraphiteRx to be in violation of law, or (B) expose GraphiteRx to legal or financial risks, or (ii) the supplier is unwilling to reasonably cooperate with GraphiteRx in connection with receiving orders and providing information relating to the products that Customer can purchase from the supplier. Customer will execute any documents reasonably requested by GraphiteRx or a supplier confirming GraphiteRx’s authority to coordinate with a supplier on behalf of Customer as part of the  Solution.

B.  Customer acknowledges that GraphiteRx is not responsible for negotiating, entering into, complying with or maintaining any applicable contractual terms and conditions between Customer and a supplier through which Customer orders pharmacy products through the Solution (a “Managed Supplier”) and GraphiteRx disclaims any responsibility or liability with respect thereto. In the case of a dispute between Customer and a supplier, GraphiteRx (and its affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) shall be released from any claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release Customer expressly waives any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which Customer may know or suspect to exist in Customer’s favor at the time of agreeing to this release.

 

C.  Customer acknowledges and agrees to the following qualification of Solution: (i) GraphiteRx is not responsible for the accuracy of supplier pricing that is presented in GraphiteRx, including if the inaccuracy is due to error or delays caused by GraphiteRx, (ii) GraphiteRx is not responsible for monitoring or correcting orders, including excessive orders and any orders submitted by Customer in error will need to be addressed between Customer and the applicable Managed Supplier, provided, however, GraphiteRx will provide Customer with reasonable assistance in resolving any discrepancies or errors with a Managed Supplier, (iii) to mitigate the potential impact of delays or errors in order transmissions from GraphiteRx to Managed Suppliers, Customer is required to ensure that it maintains sufficient inventory to meet its patient needs, (iv) if due to system malfunctions (e.g. outages) GraphiteRx is unable to process orders with Managed Suppliers, Customer may be required to submit any time- sensitive orders directly to the applicable impacted suppliers, and (v) GraphiteRx maintains and has access to confidential product pricing on behalf of suppliers and other customers and GraphiteRx is under no obligation to inform Customer of any pricing which does not apply to Customer.

 

    3. USE OF CONTENT; NO PHI
 

A.  Content. As part of the Solution, GraphiteRx may provide product information (including descriptions, pricing and images) that are provided by third parties, including suppliers. Customer may use this content solely for the purposes of utilizing the Solution in accordance with the terms of this Agreement. Such product information may include copyrighted, trademarked and other proprietary materials. Customer agrees not to remove any copyright, proprietary, or identification markings in the product information and not to create any derivative works based on that information. If GraphiteRx has reason to believe that content is being misused, it may modify or revoke that permission at any time in its sole discretion.

B.  Inaccuracies. It is GraphiteRx’s goal to provide reliable product information, but it cannot promise that the content provided through the Solution will always be available, accurate, complete, and up-to-date, regardless of reason.  Customer agrees that GraphiteRx is not responsible for examining or warranting any content provided by third parties through the Solution, and that Customer will not attempt to hold GraphiteRx or its data providers liable for inaccuracies.

C.  Restrictions on Use. Except with the prior express written permission of GraphiteRx, Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Solution or any software, documentation or data related to the Solution (“Software”); (ii) modify, translate, or create derivative works based on the Solution or any Software; (iii) use the Solution or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party or commercialize any GraphiteRx application or any information or software associated with such application; (iv) use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access the Software or Solution for any purpose; (v) remove any proprietary notices or labels; or (vi) remove or export from the United States or allow the export or re-export of the Solution, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

D.  No PHI. Customer will ensure that it and its users will not disclose, transmit or provide to GraphiteRx or upload to any GraphiteRx systems any data or information that contains any protected health information (PHI), as defined under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or any similar applicable laws. 

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    4. TERM AND TERMINATION
 

A.  Term. Subject to earlier termination as provided below, or as otherwise set forth in a separate order form signed by the parties (if applicable), the term for the Solution shall continue until either party provides the other party with an advance written notice of termination of at least thirty (30) days.

B.  Termination for Breach. In the event that either party breaches a material term of this Agreement that is not cured within thirty (30) days of receipt of a written notice specifying the breach, the non-breaching party may terminate the Agreement immediately upon expiration of such thirty (30)-day notice. In the event that the breach cannot be cured within thirty (30) days, the breaching party must demonstrate it is diligently making efforts to cure the breach to the satisfaction of the other party.

C.  Termination for Bankruptcy or Insolvency. If either party files a petition for bankruptcy, is adjudicated bankrupt, becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver appointed for it or its business, or has a petition in bankruptcy filed against in that is not discharged within thirty (30) days, then the other party may terminate this Agreement immediately.

D.  Rights of Parties on Termination or Expiration. In connection with the termination or expiration of this Agreement, the parties shall use commercially reasonable efforts to cooperate to prepare a reasonably detailed, written transition and wind-down plan to coordinate an orderly cessation of the activities provided for under this Agreement; provided, however, that the termination or expiration of this Agreement for any reason shall not affect any obligations accrued or amounts owed hereunder (if applicable) before the date of such expiration or termination, and other than with respect to matters in dispute, all indebtedness of the parties to each other shall become immediately due and payable without further notice or demand. Upon any termination, GraphiteRx will make all Customer Data (as defined below) available to Customer for electronic retrieval for a period of sixty (60) days, and thereafter GraphiteRx may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment (if applicable), confidentiality obligations, proprietary rights, warranty disclaimers, and limitations of liability.

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    5. CONFIDENTIALITY; PROPRIETARY RIGHTS
 

A.  Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of GraphiteRx includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to GraphiteRx to enable the provision of the Solution (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Solution or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document: (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.

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B.  Rights. Customer shall own all right, title and interest in and to the Customer Data and GraphiteRx shall not sell, market, or commercialize Customer Data. GraphiteRx shall own and retain all right, title and interest in and to (i) the Solution and Software, all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with implementation or support of the Solution or Software, and (iii) all intellectual property rights related to any of the foregoing. Notwithstanding anything to the contrary, GraphiteRx shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Solution and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and GraphiteRx will be permitted (during and after the term hereof) to (i) use such information and data to improve and enhance the Solution and for other development, diagnostic and corrective purposes in connection with the Solution and other GraphiteRx offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

C.  Licenses. Customer grants GraphiteRx and GraphiteRx’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services, processes, technologies, applications and systems any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer to GraphiteRx.

D.  Use of Marks. Upon  consent by Customer, GraphiteRx shall have the right to use Customer’s trademarks, names and logos on websites and in marketing collateral for the purpose of promoting the Solution with prospective customers.

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    6. COMPLIANCE WITH LAWS

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A.  Compliance. Each party represents, covenants, and warrants to the other that it will perform its obligations under this Agreement and use the Solution, as applicable, in compliance with all applicable federal, state and local laws and regulations, including without limitation, all applicable “safe harbor” regulations relating to group purchasing organizations and fees.

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B.  Fraud and Abuse. The parties expressly acknowledge that if compensation will be payable, hereunder, such compensation will be fair market value for the services rendered and that nothing contained herein shall require referrals for items or services between the parties. Neither party will knowingly or intentionally conduct itself in such a manner as to violate any federal or state law, rule, or regulation applicable to the services rendered hereunder, including, but not limited to, any fraud and abuse provisions relating to the Medicare and Medicaid Programs. The parties also agree that the benefits to either party hereunder do not require, are not payment for, and are not in any way contingent upon the admission, referral, or other arrangement for the provision of service reimbursed under any federal or state healthcare program.

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C.  Discount Safe Harbor. Each party is responsible for fully and accurately reporting and/or providing information on all discounts, rebates, or reductions in price on the invoice, coupon, or statement in accordance with all applicable laws and regulations, including the provisions of the discount exception at 42 U.S.C. § 1320a-7b(b)(3)(A) and/or the discount safe harbor regulation at 42 C.F.R. § 1001.952(h). Each party agrees that it shall promptly disclose and appropriately reflect any discount, rebate, or other reduction in price as may be required under Medicare or any other federal or state health program, and each party represents to the other party that it shall refrain from taking any action or omission that would impede the other party from meeting its obligations under law, consistent with the requirements of the Medicare/Medicaid anti-kickback statute and regulations. Each party shall timely provide any documentation necessary or desirable for the other party to meet its reporting obligations.

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D.  Exclusions/Investigations. GraphiteRx represents and warrants that, as of the execution of this Agreement, neither it nor, to the best of its knowledge, any of its employees or other agents providing the Solution hereunder has ever been suspended, excluded, barred, or sanctioned by Medicare or ever been convicted of a criminal offense related to healthcare. GraphiteRx shall notify Customer immediately upon discovery that any such action is proposed or taken against GraphiteRx, its employees or agents.

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    7. WARRANTY AND DISCLAIMER

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GraphiteRx shall use reasonable efforts consistent with prevailing industry standards to maintain the Solution in a manner which minimizes errors and interruptions in the Solution. The Solution may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by GraphiteRx or by third-party providers, or because of other causes beyond GraphiteRx’s reasonable control. GraphiteRx shall use reasonable efforts to provide advance notification in writing or by e-mail of any scheduled service disruption outside of normal business hours. However, GraphiteRx does not warrant that the Solution will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Solution. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SOLUTION AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND GRAPHITERX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

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    8. INSURANCE

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GraphiteRx shall maintain at its sole cost and expense (i) Commercial General Liability insurance, with minimum limits of $1,000,000 per occurrence and $1,000,000 in the aggregate, (ii) Cyber (Network and Security) insurance with a minimum aggregate limit of $3,000,000, and (iii) Professional Liability/Errors and Omissions insurance, with minimum limits of $3,000,000 for each wrongful act and in the aggregate, against any claim or claims, which might or could arise, regarding the Solution provided by GraphiteRx to Customer under this Agreement.

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    9. INDEMNITY

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A.  GGraphiteRx shall defend, indemnify and hold Customer (and its respective affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided GraphiteRx is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; GraphiteRx will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by GraphiteRx, (ii) that are modified after delivery by GraphiteRx, (iii) combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Solution are held by a court of competent jurisdiction to be or are believed by GraphiteRx to be infringing, GraphiteRx may, at its option and expense (a) replace or modify the Service to be non-infringing, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and any Customer rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service, if applicable.

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B.  Each party shall defend, indemnify and hold the other (and their respective affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) harmless from liability to third parties for any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from such party’s breach of this Agreement.

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   10. LIMITATION OF LIABILITY

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NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, GRAPHITERX AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, AGENTS, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND GRAPHITERX’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE GREATER OF (1) THE FEES PAID BY CUSTOMER TO GRAPHITERX FOR THE SOLUTION UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, (2) OR $1,000, IN EACH CASE, WHETHER OR NOT GRAPHITERX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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   11. MISCELLANEOUS

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A.  General. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Jurisdiction and venue for any dispute between the parties concerning this Agreement shall rest exclusively within the state and federal courts in New Castle County, Delaware. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. If Customer is entitled to use the Solution pursuant to a separate agreement between GraphiteRx and a group purchasing organization, to which Customer is a member or participant, the terms of such separate agreement shall apply. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. No agency, partnership, joint venture, or employment is created as a result of this Agreement and one party does not have any authority of any kind to bind the other in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Headings are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of this Agreement.

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B.  Assignment. Neither party may assign this Agreement, or any rights or obligations hereunder, without the other party’s prior written consent, which consent shall not be unreasonably withheld, delayed, or conditioned; provided, however, that a party may transfer and assign this Agreement without the other party’s consent to such party’s affiliate or to an entity that acquires control of all or substantially all of such party’s stock or assets (including by operation of law pursuant to a merger) if any such assignee agrees, in writing, to be bound by the terms of this Agreement and the assigning party provides the other party with prompt written notice thereof.

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C.  Force Majeure. Except for the obligation to pay money when due, neither party shall be liable for a delay in its performance of its obligations and responsibilities under this Agreement due to extraordinary causes beyond its control, such as, but not limited to war, act of terrorism, embargo, national emergency, pandemic, insurrection or riot, acts of the public enemy, fire, flood, or other natural disaster, Internet service provider failure or delay, 3rd Party services failure or delay, or denial of service attack, provided that such party has taken reasonable measures to notify the other, in writing, of the delay. Further, in the event either party is unable to meet its obligations hereunder because of such force majeure, and such inability continues for a period of thirty (30) days or more, then either party may terminate this Agreement effective immediately.

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Version Update: November 7, 2022

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