GraphiteRx Financial Solutions
Terms of Service for Buyers
Last Updated on June, 26, 2023
GraphiteRx Inc. (“GraphiteRx”, “we”, “us” or “our”) makes available one or more platforms (“Platform”) on which (i) you place orders to buy goods and products from sellers (“Sellers”), (ii) Sellers sell their goods and products to you, (iii) Sellers issue invoices for the goods and products you buy from them through the Platform (“Invoices”), (iv) Sellers sell Invoices and their underlying receivables to us, and (v) you pay Invoices to us (“Payment Service”), subject to these Graphite Financial Solutions Terms of Service for Buyers (“Terms”). The Platform is made available through this website, any of our other websites or other medium (collectively, “Site”). The Platform includes similar arrangements made available through other companies that engage us to host marketplace or ordering platforms (“Platform Partners”).
By accepting these Terms or by accessing or using the Site, the Payment Service or Platform, including through an arrangement you may have with a Platform Partner, you acknowledge that you have read, understood, and agree to these Terms. If you are agreeing to these Terms on behalf of a company, business or other legal entity, you represent that you have the authority to bind such company, business or entity, in which case “you” and “your” refer to such company, business or entity. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not access or use the Site, Platform or Payment Service.
The Platform or Payment Service may be subject to additional terms and conditions, which are posted or made available separately from these Terms (“Additional Terms”). Your use of the Platform or Payment Service may also be subject to additional policies, procedures, guidelines or rules we also post or make available. Such Additional Terms policies, procedures, guidelines and rules are incorporated and form a part of these Terms. If there is a conflict between these Terms and the Additional Terms, the Additional Terms will control to the extent of the conflict.
1. Access and Use of the Platform and Payment Service
1.1 Registration; User Names and Passwords. You must register with us and establish one or more accounts with us (each, a “Graphite Account”) in order to access the Platform and Payment Service. You must specify at least one administrator to manage your Graphite Account. Administrators can add, remove, or manage users and perform other tasks on your behalf. You are responsible for any actions or failure to act on the part of administrators, users, and those using credentials issued to administrators and users to access your Graphite Account. Use of your Graphite Account, Platform and Payment Service by your administrators, users and those using credentials issued to administrators and users is considered use of your Graphite Account, Platform and Payment Service by you.
You will keep your Graphite Account secure and only provide access to persons who you have authorized to act on your behalf. You will immediately disable user access to the Platform, Payment Service and your Graphite Account if you know or believe your Graphite Account has been compromised or may be misused; and you will promptly notify us of any unauthorized access or use. You are responsible for any loss or damage you incur caused by administrators, users, or other persons accessing your Graphite Account, the Platform or Payment Service. We may suspend or terminate access to your Graphite Account, the Platform and Payment Service if we believe your Graphite Account has been compromised or that not doing so may pose a risk to you, us or any third party.
1.2 Onboarding. Your access to the Platform and Payment Service is dependent on your completing any required onboarding, and timely and accurately responding to inquiries from us or Service Providers.
1.3 Third-Party Service Providers. We may engage third-party service providers (“Service Providers”) to facilitate providing the Payment Service to you, including Stripe Inc. and Balance Payments, Inc. Our Service Providers are engaged by us and are not providing you the Payment Service directly. Our Service Providers will facilitate transfers of funds from us to you based only on our instructions.
1.4 Information. Your access to the Payment Service is also dependent on you timely and accurately providing information reasonably requested by us or Service Providers to assess whether the Payment Service may be provided. You represent, warrant and covenant that the information you provide to us or Service Providers is true, accurate, current and complete, and that you have the legal right to provide it, and you acknowledge and agree that we may rely on it. You also acknowledge and agree that we may provide this information to Service Providers in order to make the Payment Service available to you and Service Providers may rely on the information provided to them. You agree that any Service Provider may provide any information in its possession or control to us concerning you, including in connection with any transition of services to another Service Provider.
1.5 Credit Information. You authorize us and Service Providers to obtain credit reports and other information about you from credit rating agencies and other sources for any business purpose related to the Payment Service, including evaluating your ability to repay and verifying information you provide to us and Service Providers. You understand and authorize us and our Service Providers to provide information about you to credit rating agencies. If you fail to timely pay for any Invoice when due, we or any of our Service Providers may report this negative information to one or more credit rating agencies, which may have a negative impact on your rating.
2. Payment Service
2.1.1 You acknowledge and agree that Invoices provided by Sellers or a Platform Partner for purchases that you make through the Platform will be revised by us to include (a) remittance information to a separate account used to process your payments, (b) the correct payment due date and other terms offered to, and agreed to, by you, (c) certain disclosures informing you that we may purchase Invoices from Sellers and assign them to Service Providers and others, and (d) any applicable Platform fees payable by you.
2.1.2 You acknowledge and agree that a Seller may sell an Invoice issued in connection with your purchase through the Platform and its underlying receivables to us, and that we may sell or transfer such Invoice and its underlying receivables to a Service Provider or other person and such Invoice and its underlying receivables may be further sold or transferred to others. You agree that any such purchaser or transferee is vested with all right, title and interest in such Invoice and its underlying receivables, and that such purchaser or transferee acquires all rights that the Seller has with respect to such Invoice and its underlying receivables and that, however, all related obligations remain with the Seller. You agree that you will pay the amount of such Invoice to such purchaser or transferee in accordance with the terms and instructions of such Invoice. We will notify you of any changes in payment instruction. You acknowledge and agree that such purchaser or transferee and its contractors or agents may seek to collect on such Invoice directly from you.
2.1.3 You agree that if any event of cancellation, return, complaint, or dispute arises between you and any Seller relating to any order you make on the Platform, any Invoice, or the goods or products underlying any order or Invoice (each, a “Invoice Issue”), You will inform us of the Invoice Issue within five (5) business days of receipt of the order or Invoice giving rise to such Invoice Issue. You acknowledge that any Invoice Issue is between you and the Seller. If you have a Invoice Issue, you agree to immediately contact the Seller through the Platform. Although we are not responsible for Invoice Issues, we may assist in the investigation and resolution of any Invoice Issue and you agree to cooperate with us on any Invoice Issue. If a Invoice Issue is not reported in a timely manner and as required by this Section 2.1.3, you agree to pay the full amount of the Invoice when due. If Seller agrees to issue a credit or refund in connection with a Invoice Issue that was reported late, such credit or refund will not apply to any Invoice, except with our written consent.
2.1.4 If you fail to pay any Invoice when due, we or any purchaser or transferee of the Invoice and its underlying receivables may take any legal means to collect on the Invoice itself or through its contractors or agents. You acknowledge and agree that the amount of any unpaid Invoice represents a debt owed by you to us or any purchaser or transferee of the Invoice. Failure to pay invoices when due may result in a suspension of your trade terms and the payment of a late fee as set forth in the Invoice. If we or any purchaser or transferee of the Invoice engage a collection agency or take court action on an unpaid Invoice, you agree to pay on demand the costs, expenses and fees of collection, including court costs and fees of attorneys.
2.2 Sellers Are Responsible for Their Goods and Products
2.2.1 You acknowledge and agree that the Seller you buy goods or products from through the Platform is solely responsible for such goods and products, including the quality, quantity and delivery of such goods and products, and any regulatory compliance requirements relating thereto and we, our Platform Partner (if applicable), any Service Provider and any purchaser or transferee of any Invoice and its underlying receivables has no responsibility for such goods and products. You may not assert any claim or defense you may have against any Seller, including a defense to payment, against us, our Platform Partner (if applicable), any Service Provider or any purchaser or transferee of any Invoice and its underlying receivables. Except as set forth in Section 2.1.3, you are obligated to pay the full amount of any Invoice in accordance with its terms to us or any purchaser or transferee of the Invoice and its underlying receivables irrespective if you have any claim or defense against, or any Invoice Issue with, Seller. We, our Platform Partners (if applicable) and Service Providers do not endorse, recommend, warrant, or bear any responsibility for any representations or warranties made by any Seller, including any implied warranties. We, our Platform Partners (if applicable) and Service Providers are not liable to you for any loss or damage that you suffer due to the acts or omissions of any Seller. For example, we have no responsibility for a Seller’s failure to honor any contractual agreement with you.
2.2.2 Prior to buying any goods or products from any Seller through the Platform, you acknowledge and agree that you have reviewed, understood and agreed to the Seller’s terms and conditions of the sale, including Seller’s delivery, return, cancellation, refund and dispute and complaint policies.
2.3 Trade Limit. A limit on the maximum aggregate dollar amount of Invoices purchased by us from Sellers with respect to your orders and outstanding at any point in time (“Trade Limit”) will be assigned to you, which may also be referred to as “trade credit terms”. Your order to buy goods and products through the Platform may not be accepted if you have exceeded your Trade Limit. We may raise, lower, allow you to exceed, or suspend or terminate at any time, without advance notice to you, your Trade Limit. You may request an increase in your Trade Limit, which we may grant or deny in our discretion.
2.4 Bank Account. To use the Payment Service, we may require that you provide us with details about an account at a U.S. depository institution you have that is owned by you and held in your name (“Bank Account”). You must continuously maintain the Bank Account and you agree to notify us in writing fourteen (14) days in advance of any change to the Bank Account. It may be a requirement of your Trade Limit that your Bank Account be able to accept ACH debits. As part of establishing or maintaining your Graphite Account you may be required to authorize us or any Service Provider to initiate ACH debit entries to the Bank Account for the purpose of debiting any amounts you owe on any Invoice or any other amount you owe us or any Service Provider in connection with the collections of any Invoice.
2.5 Payment Processor
2.5.1 We may designate one or more Service Providers to help make available the Payment Service to process your Invoice payments (“Payment Processor”). Your use of any Payment Processor will be subject to the Payment Processor’s terms, conditions, privacy and other policies, and agreements of Payment Processor (collectively, “Payment Processor Terms”). We are not liable to you for any loss or damage that you suffer due to the acts or omissions of any Payment Processor. Although we are not responsible for any loss or damage, we may assist in the investigation and resolution of any issue with the Payment Processor.
2.5.3 You authorize and direct us and Service Providers to share with Service Providers, including Payment Processors, transaction information and other information related to your use of the Payment Service, including information about your Bank Account.
2.6 Business Purpose. You agree to use the Payment Service only for commercial, business, or non-profit purposes. Individual use of the Payment Service for personal, family, or household purposes is not permitted.
2.7 Representations and Warranties. You represent and warrant to us and our Service Providers that:
2.7.1 you are not subject to or restricted by any receivership, insolvency or bankruptcy proceeding;
2.7.2 you are not subject to actual or imminent bankruptcy, insolvency or material impairment of your financial condition;
2.7.3 you and any Seller are not engaged in any litigation, mediation, or arbitration whatsoever with respect to each other, and neither has threatened the other with any litigation, mediation, or arbitration;
2.7.4 the information provided by you to us as part of your Graphite Account registration process and thereafter is truthful, current, accurate, and complete; and
2.7.5 (a) the entity that you represent is duly organized, validly existing, and in good standing under the laws of the jurisdictions in which its business is formed or does business; (b) you have all requisite right, power, and authority to enter into this Agreement, and perform your obligations, and (c) you and all of your employees, agents, representatives and contractors will comply with Applicable Law.
3. General Provisions
3.1 Indemnification. You agree to indemnify and hold harmless us, our Platform Partners (if applicable), and our Service Providers (and our and their respective employees, officers, directors, owners, contractors, agents, assigns, affiliates, and representatives) from and against any claims, causes of action, liabilities, losses, damages, settlements, penalties, fines, forfeitures, fees, costs, and expenses (including reasonable attorney’s fees and costs), arising out of or relating to (a) a breach by you of any of your representations, warranties, or covenants in these Terms or (b) your purchase of goods or products through the Platform.
3.2 Termination. We have the right to temporarily suspend or permanently terminate your use of your Graphite Accounts, the Platform or Payment Service, and/or terminate these Terms, in our sole discretion (a) without any prior notice to you in the case that we have a reason to believe that you have breached, or may breach, any term of these Terms or you pose any risk to us, our Service Providers, any other third party or the Payment Service, or (b) without cause, with ten (10) days advance written notice to you. You may terminate your relationship with us at any time by providing advance written notice to us, provided that any amounts owed to us are paid prior to termination becoming effective.
3.3 Survival. Upon termination of these Terms, each party remains bound by any and all terms that, by their nature, should survive termination, including any payment obligations and the terms contained in Sections 2.1.3, 2.1.4, 2.2, 2.5.3, and 3.1 - 3.14.
3.4 Notices. You consent to us providing notices to you electronically. We will provide notices to you through your Graphite Account, on the Site, or by postal mail, email, text or SMS to the contact information provided to us by you and your administrators and users. You should notify us immediately of any changes to your contact information. Any notices from you to us must be sent by email or to the mailing address listed below under “Contact Us”.
3.6 Governing Law; Venue. These Terms, the interpretation and enforcement of its terms, and any claim or cause of action (in law or equity), controversy, or dispute arising out of or related to it or its negotiation, execution, or performance, whether based on contract, tort, statute, or other law, will be governed by the law, including the statutes of limitation, of the State of Delaware (unless otherwise agreed upon by the parties in writing) in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction. Each party irrevocably submits to the exclusive jurisdiction of any state or federal court in either New York, NY, San Francisco, CA, Dallas, TX or Wilmington, DE, unless otherwise agreed upon by the parties in writing. Each Party irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such proceedings brought in such a court and any claim that any such proceedings brought in such a court have been brought in an inconvenient forum.
3.7 Arbitration; Class Waiver
3.7.1 You agree to arbitrate any dispute or claim that you may have with us or any Service Provider that arises out of or relates in any way to these Terms. Arbitration will be governed by the terms of this Section and will be final and binding on the parties. You agree to waive any right to participate in a class action or other representative proceeding against us or any Service Provider. Arbitration will take place on an individual basis. If the arbitration provisions in these Terms are found inapplicable to your dispute with us or otherwise unenforceable, this class waiver will continue to apply in litigation. You agree that this class waiver is an essential element of the agreement between you and us and your use of your Graphite Accounts, the Platform, Payment Service and the Site and that this class waiver may not be severed. In the event this class waiver is deemed invalid or unenforceable, the entire agreement to arbitrate in this Section is null and void.
3.7.2 Arbitration will be before a single arbitrator administered by JAMS pursuant to JAMS Streamlined Rules. The arbitrator will be bound by and will strictly enforce these Terms, any Additional Terms or agreements between you and us and may not limit, expand or otherwise modify any of the provisions of the foregoing. Any arbitration will be held in New York, NY, San Francisco, CA, Dallas, TX or Wilmington, DE, unless otherwise agreed upon by the parties in writing, and will be governed by and construed in accordance with the laws of the State of Delaware, unless otherwise agreed upon by the parties in writing. You agree that your transactions with us 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).
3.7.3 A party that retains legal counsel to enforce these Terms against the other party is entitled to receive attorney’s fees and related enforcement costs if such enforcing party prevails.
3.8 Limitation on Liability
3.8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, WE, OUR PLATFORM PARTNERS, OUR SERVICE PROVIDERS, EACH OF OUR AFFILIATES, AND EACH OF ALL SUCH ENTITY’S EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, CONTRACTORS, AGENTS, REPRESENTATIVES AND ASSIGNS WILL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY TERM OR SUBJECT MATTER OF THE THESE TERMS 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, SOLUTIONS OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ANY SUCH ENTITY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, LIABILITIES AND DAMAGES, EXCEED $10,000, WHETHER OR NOT ANY SUCH ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
3.8.2 Your acceptance of this limitation of liability is an essential term and we would not provide you with the Payment Service and access to your Graphite Accounts, the Platform or the Site without your agreement to this essential term. If you are a California resident, you waive your rights with respect to California Civil Code Section 1542, which indicates “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, liability will be limited to the maximum extent permitted by Applicable Law.
3.9 No Implied Warranties. We, our Platform Partner, and our Services Providers do not warrant that the Site, Platform and Payment Service will be uninterrupted or error-free; nor do we make any warranty as to the results that may be obtained from the use of the Site, Platform and Payment Service. YOUR USE OF THE PLATFORM, SITE AND PAYMENT SERVICE IS AT YOUR OWN RISK. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SITE, PLATFORM AND PAYMENT SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE, OUR PLATFORM PARTNERS, AND OUR SERVICES PROVIDERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
3.10.1 For purposes of these Terms, “Confidential Information” means all information, in oral, written, machine readable, sample or any other form, that either party discloses (“Discloser”) to the other party (“Recipient”) relating to the business of Discloser, or its affiliates or Service Providers, including information related to the Site, Platform or Payment Service, pricing, proprietary business practices, policies, procedures, finances, sales, costs, markets, strategies, concepts, methods or other information that is not generally ascertainable from public or published information or sources, and all analyses, compilations, data, studies, notes, memoranda or other documents prepared based on such Confidential Information.
3.10.2 Confidential Information does not include information that (a) is already known to Recipient prior to its disclosure by Discloser without obligation of confidentiality; (b) is in or has entered the public domain through no breach of these Terms or other wrongful act of any person; (c) has been rightfully received from a third party without confidential or proprietary restriction and without breach of these Terms; (d) Recipient develops independently without the use of any Confidential Information of Discloser; or (e) has been approved for release by prior written authorization of Discloser.
3.10.3 In connection with these Terms, Recipient and its employees and agents, may have access to the Confidential Information of Discloser. Recipient will, and will ensure that its employees and agents will, keep the Confidential Information of Discloser in strict confidence and use it only for the purpose of performing its duties under these Terms. Recipient will not directly or indirectly disclose, publish, disseminate, make available, discuss or otherwise communicate in any way, to any person not having a need to know in order to perform its duties under these Terms, any Confidential Information of Discloser, without Discloser’s prior written consent.
3.10.4 Recipient will make the Confidential Information of Discloser only available to those employees and agents who have a reasonable need for such Confidential Information in connection with the performance of these Terms.
3.10.5 Recipient will have appropriate safeguards in place to restrict access to Confidential Information to only those individuals as needed in connection with the performance of these Terms.
3.10.6 Recipient will take care of Discloser’s Confidential Information using at least the same standard of care it would use with its own confidential information, but in no event will Recipient use less than reasonable care in protecting Discloser’s Confidential Information.
3.10.7 In the event that Recipient is required by a binding order of a governmental agency or court of competent jurisdiction to disclose any Confidential Information of Discloser, it will, if legally permitted, provide Discloser with prompt written notice sufficient to allow Discloser an opportunity to appear and object to such disclosure. If such objection is unsuccessful, then Recipient will produce only such Confidential Information as is required by the court order or governmental action.
3.10.8 Recipient acknowledges and agrees that, in the event of any breach of this provision, Discloser may not have an adequate remedy in money or damages. Discloser may be entitled to seek the granting of equitable relief, including injunction and specific performance, in the event of any such breach, in addition to all other remedies available to Discloser at law or in equity.
3.10.9 Notwithstanding the foregoing, the parties acknowledge and agree that this Section 3.10 does not apply to any information that is subject to a separate use agreement.
3.11 Changes. We reserve the right to change these Terms from time to time, in our sole discretion, and we will provide you with notice of such changes if required by Applicable Law. No changes to these Terms will apply retroactively, and changes will become effective no sooner than ten (10) days after sent or posted. However, changes addressing new services or new functions or enhancements of a Payment Service, or changes made to comply with Applicable Law or Service Provider requirements, or to address any risk concern of ours or a Service Provider may be effective immediately. By continuing to use the Site, Platform or Payment Service after a change to these Terms is effective, you accept and agree to the changes. You are expected to check the Site, Platform and your Graphite Account from time to time so you are aware of any changes.
3.12 Force Majeure Event. If we are unable to perform any of our obligations in these Terms by reason of a Force Majeure Event, then our performance of such obligations will be excused during the continuance of the inability so caused. A “Force Majeure Event” means an unanticipated event that is not reasonably within the control of the affected party (including acts of God, acts of governmental or monetary authorities, strikes, war, epidemics, pandemics, riot and any other causes of such nature).
3.13 Definitions. The terms below used these Terms have the meanings provided.
“Applicable Law” means any and all applicable foreign, federal, state or local treaties, laws, statutes, ordinances, codes, rules regulations or requirements; common law; any court or arbitration judgment, writ, decree, injunction, order, stipulation, ruling, decision, verdict, determination or settlement.
If an obligation is to be done promptly, it must be done within two (2) business days.
All references to “include,” “includes,” or “including” are deemed to be followed by the words “without limitation”.
You may contact us regarding these Terms through any of the following means:
Phone: (925) 231-0100
210 25th Ave. North, Suite 1210
Nashville, TN 37203
This document was last updated on June 26, 2023