GraphiteRx OM Solution Agreement

GRAPHITERX ORDER MANAGEMENT

SOLUTION AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOLUTION

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 GraphiteRx Order Management Solution Agreement (“Agreement”) with GraphiteRx Inc. a Delaware corporation located at 210 25TH Ave N, Suite 1210, Nashville, TN 37203 (“we”, “us” or “GraphiteRx”). GraphiteRx and Customer are sometimes referred to herein as “the parties”.
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.
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.

This Agreement is also subject to the terms and conditions set forth in the GraphiteRx Platform Terms of Use, the Graphite Marketplace Terms and Conditions, the GraphiteRx Financial Solutions Terms of Service for Buyers and the GraphiteRx Privacy Policy.

We reserve the right to modify or amend this Agreement from time to time, in our sole discretion, and we will provide Customers with notice of such change or changes via reasonable methods and by posting the changes on this page. No changes will apply retroactively, and changes will become effective no sooner than thirty (30) days after they are posted. However, changes addressing new functions for a service or changes made to comply with legal requirements may be effective immediately. By continuing to use the Solution after a revision to the Agreement is posted and becomes effective, Customer accepts and agrees to the changes. Customer is expected to check this page from time to time so that Customer is aware of any changes, as they are binding on Customer.

NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT CUSTOMER’S RIGHTS ABOUT RESOLVING ANY DISPUTE WITH US. PLEASE READ IT CAREFULLY.

If you have any questions, please refer to the “Contact Us” section below.

1. SOLUTION AND SUPPORT

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.

2. SUPPLIERS

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. 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.

4. 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.

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 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”), 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. Reference to Customer. GraphiteRx shall have the right to refer to Customer as a GraphiteRx customer in discussions, on websites and in marketing collateral for the purpose of promoting the Solution with prospective customers.

5. COMPLIANCE WITH LAWS

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.

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.

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.

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.

6. WARRANTY AND DISCLAIMER

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.

7. INSURANCE

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.

8. INDEMNITY

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.

9. LIMITATION OF LIABILITY

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.

10. MISCELLANEOUS

A. Governing Law. This Agreement and any disputes hereunder shall be governed by and construed in accordance with applicable federal Law and the laws of the State of Delaware (or if the Customer is a state-owned entity, the laws of Customer’s state) without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the United States or State of Delaware (or if the Customer is a state-owned entity, the laws of Customer’s state).

B. Dispute Resolution.

NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT RIGHTS ABOUT RESOLVING ANY DISPUTE BETWEEN THE PARTIES.

The parties will work in good faith to resolve any and all issues, claims, and/or disputes arising out of this Agreement or use of the Solution (hereinafter referred to as a “Dispute”) including, but not limited to all questions of the existence, validity, scope, or interpretation of this Agreement or any term contained in Agreement prior to the commencement of any litigation or arbitration. In the event a Dispute arises, the party asserting the Dispute shall provide written notice to the other party identifying the nature and scope of the Dispute. If the parties are unable to resolve the Dispute within thirty (30) days after such notice is provided, then either may request, in writing, a meeting or telephone conference to resolve the Dispute. At any such meeting or telephone conference, each party shall have present appropriate decision-making personnel and shall make good faith efforts to resolve the dispute. A party may commence arbitration only if a representative of the party seeking to commence such litigation or arbitration certifies in writing that one of the following is true: (i) the Dispute was not resolved after faithfully following the procedures set forth above in this Section; or (ii) the other party did not fully comply with the procedures set forth above in this Section.

The parties shall arbitrate any Dispute that is not resolved in accordance with the procedures in this Section. Such arbitration shall be governed by the terms of this Section and shall be final and binding. The parties agree to waive any right to participate in a class action or other representative proceeding to resolve a Dispute. Any arbitration proceeding under this Section will take place on an individual basis. If the arbitration provisions in this Agreement are found inapplicable to the Dispute or otherwise unenforceable, this class waiver will continue to apply in litigation. The parties agree that this class waiver is an essential element of this Agreement and your use of the Solution and that this class action waiver may not be severed. In the event this class action waiver is deemed invalid or unenforceable, the entire agreement to arbitrate in this Section shall be null and void.

Any Dispute subject to arbitration pursuant to this Section must be submitted to binding arbitration before a single arbitrator administered by JAMS pursuant to JAMS Streamlined Rules. The arbitrator will be bound by and will strictly enforce this Agreement and any additional relevant terms and may not limit, expand or otherwise modify any of the provisions of the foregoing. Unless otherwise agreed to by both parties, any arbitration will be held, in either New York, NY, Dallas, TX, San Francisco, CA, or Wilmington, DE, or if the Customer is a state-owned entity, the capital city of the Customer’s state. The parties agree that transactions facilitated by the Solution evidence transactions in interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of this Section (notwithstanding the application of state law to any underlying claims).

A party that retains legal counsel to enforce the Agreement against the other party shall be entitled to receive attorney’s fees and related enforcement costs if such enforcing party prevails.

C. General. 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. In the event that the term of such separate agreement expires without renewal, Customer shall have the right to continue to use the Solution subject to the terms of this Agreement. 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. 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.

D. 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.

E. 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.

GraphiteRx Inc.

Attn: Legal

210 25th Ave. North, Suite 1210

Nashville, TN 37203

Email: info@GraphiteRx.com

Phone: (925) 231-0100

Updated: March 5, 2024