Mark Cuban Cost Plus Wholesale, LLC
Marketplace Terms & Conditions
Powered by GraphiteRx
Last Updated on July 24, 2023
This Site may only be used for Marketplace Transactions by Users. By using the Site in connection with a Marketplace Transaction in any manner, You agree to be bound by the Marketplace T&C. If You have any questions, please refer to the “Contact Us” section below.
Capitalized terms used in these Marketplace T&Cs shall have the meanings as defined below or as otherwise defined herein:
“Applicable License” means the license or registration issued by a federal or state government agency pursuant to which a Buyer is authorized to purchase, or a Seller is authorized to sell, Products.
“Buyer” means an entity Ordering Products via the Marketplace that is a hospital, ambulatory surgery center, infusion pharmacy, retail pharmacy, clinic, or other healthcare facility or an individual or entity in an administrative or operational position that supports the healthcare purchasing activities of such entity.
“Government Health Care Program” means: (i) any Federal health care program (including Medicare Parts A or B, any Medicare Advantage plan, any Medicare Part D plan, any federal-state Medicaid program, any managed Medicaid plan, TRICARE, the Veterans Administration health coverage or Department of Defense health coverage); or (ii) any other federal or state programs which provide inpatient or outpatient coverage of prescription drugs, including the Puerto Rico Government Health Insurance Plan.
“GraphiteRx,” as used herein, refers to GraphiteRx Inc. and its affiliates.
“Legal Requirements” means all requirements of common law, statute, regulation, rule, sub-regulatory guidance of a governmental authority, requirements under any contract with a governmental authority (including all flow-down obligations under such contract which are incorporated into any other contract) and requirements associated with any license or authorization of a governmental authority.
“Liabilities” means any and all liabilities, damages, penalties, fines, assessments and amounts paid in settlement asserted against or imposed upon Indemnified Parties (as defined herein) arising out of or due to a third party claim for which such Indemnified Parties are entitled to be indemnified pursuant to these Marketplace T&Cs, together with all costs or expenses actually and reasonably incurred by such Indemnified Parties in the investigation, preparation, defense, settlement and ongoing monitoring of any such third party claim or in asserting, preserving or enforcing rights under these Marketplace T&Cs, including reasonable attorneys’ and experts’ fees and costs.
“Marketplace” means the technology platform offered on the Site by MCCP powered by GraphiteRx to facilitate the purchase and sale of Products between Buyers and Sellers.
“Marketplace Transaction” means the purchase and sale of Product between a Buyer and a Seller utilizing the Marketplace in accordance with the Marketplace T&Cs.
“MCCP” means Mark Cuban Cost Plus Wholesale, LLC and its affiliates.
“Order” means a purchase Order submitted on behalf of a Buyer to a Seller via the Marketplace for the purchase of Product.
“Product” means a pharmaceutical or other healthcare product that Seller offers for sale to Buyers via the Marketplace.
“Purchase Location” means the location Buyer specifies in an Order indicating where Product is to be delivered, which location shall matches the location set forth in Buyer’s Applicable License.
“Seller” means an entity offering Products for sale via the Marketplace.
“User” or “You” (including “Your” and “Yours”) means an appropriately authorized representative of either a Buyer or a Seller, the Buyer or Seller that is represented by such representative, and their respective affiliates.
“We” or “Us” (including “Our” and “Ours”) means MCCP and GraphiteRx.
The purpose of the Marketplace is to help facilitate the sale, distribution and purchase of pharmaceutical and other healthcare products, between Buyers and Sellers. We are not distributors, logistics providers, group purchasing organizations, buyers or sellers of Products nor do we at any time take title to, or possession of, any Products. We provide the Marketplace solution, which includes, allowing Sellers to list Products for sale, providing trade account terms for Buyers to enable payment for Products through GraphiteRx, and facilitating the listing of Products by Sellers, the order of Products by Buyers, and other communications between Buyers and Sellers, for Marketplace Transactions.
The Marketplace T&Cs establish the rights and obligations of Buyers and Sellers with respect to Marketplace Transactions. You understand and agree that these Marketplace T&Cs have been prepare to facilitate efficient Marketplace Transactions. You acknowledge that these Marketplace T&Cs were not written with Your specific interests in mind. You acknowledge and agree that We are not responsible for negotiating, entering into, complying with, enforcing or maintaining any applicable contractual terms and conditions as between a Buyer and any Seller and We disclaim any responsibility or liability with respect thereto. Both Buyers and Sellers are strongly encouraged to have their legal counsel review the Marketplace T&Cs before using the Site for Marketplace Transactions. By accepting the Marketplace T&C’s, You acknowledge that you have had legal counsel review the Marketplace T&C’s or have knowingly and voluntarily waived Your right to do so.
The Marketplace T&Cs may conflict with other agreements, terms and conditions, licenses, and other policies (collectively, “Outside Terms”). By way of example, and without providing an exhaustive list:
Seller may be a party to a separate agreement relating to one or more other solutions offered by MCCP or GraphiteRx.
Buyer and GraphiteRx may be parties to a separate agreement or Order form relating to Buyer’s use of GraphiteRx’s order management solution.
Seller may be a party to an agreement with Buyer’s group purchasing organization, which establishes specific terms and conditions relating to Buyer’s purchase of products from Seller, including with respect to pricing and payment of GPO administration fees.
Subject to the return provisions of these Marketplace T&Cs, Seller may have a return policy that governs the return of Products purchased through Marketplace Transactions.
A Seller or buyer may have its own privacy policies that govern the use of certain of the other Party’s information and data. Such privacy policies may be more or less restrictive than those of the Marketplace T&Cs. In the event of any conflict between a Party’s privacy policies and the confidentiality provisions or privacy policies of the Marketplace T&Cs, the provisions that provide the greater protection for the other Party’s information shall control unless otherwise expressly agreed by such other Party, provided that such other policies have been provided to such other Party prior to the information being shared.
Buyer and Seller may, from time to time, enter into separate pricing and volume agreements that could make Buyer eligible for a different price or a rebate in relation to one or more Marketplace Transactions.
In the event of a conflict between (i) the Marketplace T&Cs, and (ii) any Outside Terms that are agreed to between a Buyer and Seller, or which otherwise apply to a Buyer and Seller’s commercial relationship, the Marketplace T&Cs as applicable, will always govern with respect to any rights or obligations between Us and the Buyer and/or Seller. Any attempt by Buyer and/or Seller to modify the Marketplace T&Cs in a manner that adversely impacts Us will be null and void, unless otherwise agreed to in a written agreement signed by both MCCP and GraphiteRx. We reserve the right to modify or amend the Marketplace T&Cs from time to time, in our sole discretion, and will provide Users with notice of any such modification or amendment via reasonable methods and by posting the modifications or amendments on this page. No changes will apply retroactively, and changes will become effective no sooner than thirty (30) days after they are posted or communicated. 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 Site after a modification or amendment to the Marketplace T&Cs is posted and becomes effective, You agree to be bound by such changes. You are expected to review this page from time to time and you will be deemed to be aware of any changes that are posted as aforesaid.
4. Product Listings
Seller is responsible for providing to Us or independently uploading and maintaining, the catalog of Products available for purchase by a Buyer through a Marketplace Transaction. In such listing, Seller will provide customary information that is reasonably necessary for Buyer to make an informed purchase decision, which, at a minimum, must include:
NDC (or SKU) and Item #
Pack size of the selling unit
Unit of measure of the selling unit
Price per selling unit
Account type for the selling unit price (e.g. Open Market / WAC, contract or 340B)
Minimum Order quantity and/or incremental Order quantity (e.g. if the product is listed in eaches but sold in case quantities)
If dating/shelf-life is less than 12 months, and if so, how much dating remains
If the product is non-returnable (except that no “non-returnable” statement shall be effective to override the provisions of Section 14 – Returns.
Any special requirements for submission of Orders (e.g. REMS or attestations)
Minimum Order amount for free shipping
If product is on backorder, the expected back-Order release date
If Seller is the manufacturer or authorized distributor of the manufacturer of the product
Expected Order to delivery lead times based on the shipping method selected by Buyer, it being understood that the initial Order from a Buyer may require an additional 3-5 business days to setup Buyer as a ship to in Seller’s or Seller’s logistics provider’s system
States in which Seller will distribute the Product
Any other pertinent information that is reasonably requested by Us from time to time
Buyer is responsible for reviewing all Product information provided by a Seller prior to submitting an Order for a Product.
By submitting an Order on behalf of a Buyer for a Marketplace Transaction, You represent that You are authorized to do so by the Buyer organization on whose behalf You are submitting an Order. Buyer shall not order Products for a Purchase Location or take receipt of any shipments of a Product unless Buyer possesses all licenses, registrations, permits and consents required under applicable federal, state and local laws to purchase, receive, store, handle, and use such Product (collectively, “Licenses”) for the Purchase Location. Buyer will provide Us a copy of Licenses and copies of License renewals at least sixty (60) calendar days prior to expiration and promptly upon request and Buyer authorizes Us to provide copies of such Licenses to Seller.
Buyer may submit Orders for Product via the Marketplace, subject to any limitations noted in the Order guidelines established by GraphiteRx pursuant to the Graphite Financial Solutions Terms of Service for Buyers (“Buyer Finance ToS”). If the Seller receives Orders for Product in excess of available quantities, Seller has the right to allocate such Product among its customers in such a manner as Seller, in its sole discretion, deems appropriate. Each Order is limited to a single Purchase Location and a single Seller. The price of an Order must be within Buyer’s trade account limit that is managed by GraphiteRx pursuant to the Buyer Finance ToS. Buyer must contact GraphiteRx if Buyer wishes to increase Buyer’s trade account limit. If Buyer’s organization requires Orders to be approved, the Orders will be routed for approval prior to submission to Seller. Buyer understands that any delays in Buyer approval may impact the Order, including Product availability, pricing and delivery lead time. We may prevent an Order from being submitted if there is a material adverse change in Buyer’s financial condition, payment performance for any invoices due to GraphiteRx or a Seller by Buyer, or if Buyer does not meet GraphiteRx’s trade account requirements.
6. Order Confirmation, Shipment and Delivery
Sellers will accept or reject Orders submitted between 9 am and 5 pm CT by the later of (i) 1 pm CT or (ii) two (2) hours after submission. Seller will promptly notify Buyer if an Order cannot be fulfilled as requested by Buyer. All communications regarding Orders must be made or documented through the Site.
If Seller is unable to fulfill the full Product quantity ordered, Seller may ship Buyer a lesser quantity, provided that Seller notifies Buyer of the update prior to shipping the Order via the Site messaging feature. If Seller cannot ship the Product on time to allow for delivery within the Order-to-delivery lead time as listed by Seller pursuant to Section 4 at the time of Order, Seller must obtain Buyer’s consent to such later delivery date. If Buyer agreed to pay a fee for expedited shipping and the expected delivery is later than what was listed or provided to the Buyer at the time of the Order, Seller will not include any expedited shipping fees on the invoice for the Order. Any Product change or substitution, will require the rejection of the original Product Order and the submission of a new Order by Buyer for the alternative Product. If the Order was for a regular dated Product and Seller only has short-dated Product to ship, Seller must obtain Buyer’s consent and update the Order to reflect the lower Product price agreed to with the Buyer. For clarity, Seller must obtain Buyer’s consent for any deviation from the original Order, whether or not described in this paragraph and if Seller cannot fulfill Buyer’s Order as requested, Buyer’s sole remedy shall be to accept the change with an appropriate reduction in price or reject the change and cancel the Order. Buyer acknowledges that delays in providing required approvals may delay Order availability and delivery.
If an Order is submitted before 5 pm CT on a business day, and is accepted by Seller, the Order will be shipped to the Purchase Location in accordance with the Order to delivery lead time provided by Seller, which will be posted on the Site and visible to Buyer at time of Order, including any additional lead time that may be required if Seller does not ship on Thursday or Friday . Seller will provide shipment tracking information to Buyer through the Marketplace.
7. Product Dating
Seller will not ship Product to Buyer with an expiration date less than twelve (12) months from the date of delivery to the Purchase Location unless the Product is listed by Seller on the Site as a short-dated product or the Order is modified by Seller and approved by Buyer in accordance with Section 6.
8. Title and Risk of Loss
Seller will arrange for Product to be shipped to Purchase Location in accordance with the following: (i) Seller will bear all costs associated with shipping Product to the Purchase Location, provided that any charges that are posted by the Seller with the Product listing or otherwise agreed to by Buyer as part of the Order may be added to the Order invoice; (ii) title and the risk of loss for the Products will pass from Seller to Buyer upon delivery to the Purchase Location; and (iii) Seller will insure Products while in transit with insurance in the amounts and coverage adequate to cover a full loss or damage. In the event of any partial or complete loss, theft or damage to Product in transit, Seller will notify Buyer through the Site messaging feature and promptly provide Buyer with either a credit (for price of Product paid by Buyer) or replacement Product, as Buyer’s sole remedy.
9. Inspection of Product
Buyer will notify Seller of any deviation from the Order (shortage or excess), or any defect, or damage reasonably discoverable upon visual inspection of the Product without unloading individual shipping units, within five (5) business days after Buyer’s receipt of Product. Buyer will provide Seller with a description of the nature of any reasonably discoverable defect, shortage, or excess via the Site’s discrepancy reporting form. If Buyer submits a discrepancy reporting form but does not reject the Product, and instead accepts the delivery of Product, (i) the price for the increased or reduced quantity of the Products will be adjusted on a pro-rata basis, and Buyer will return any damaged Product to Seller for a refund or replacement in accordance with the Seller’s return policy.
The Site will display Product descriptions and prices for products as supplied by Sellers, in the Marketplace. The price of Product (“Price”) is the price displayed in the Marketplace on the date that an Order is submitted. Seller will verify pricing is accurate upon receipt of an Order. If the price displayed in the Marketplace is inaccurate, Seller shall immediately: (i) notify Us and (ii) provide updated pricing information to Us. If Buyer is eligible for a price displayed on the Marketplace and the price displayed was inaccurate because it was too low, Seller must obtain Buyer’s approval prior to fulfilling the Order. If the price displayed was inaccurate because it was too high, Seller must notify Buyer that the invoice amount will be lower as part of Seller’s Order acceptance notification, but Buyer approval is not required prior to fulfillment. Buyer acknowledges that delays in providing required approvals may delay Order availability and delivery.
Unless otherwise indicated in the Seller’s posted pricing, the Price displayed in the Marketplace includes all packaging, and standard transportation costs provided that any shipping charges posted by the Seller with the Product listing or otherwise agreed to by the Buyer as part of the ordering process will be added to the Order invoice) to the Purchase Location, insurance, customs duties and applicable taxes, to the extent known at the time of Order acceptance, including, but not limited to, all sales, use or excise taxes. If relevant customs duties and applicable taxes are not included in the price at time of Order Seller shall indicate same in the Product listing and may add these to the invoice. To the extent that the Price does not include the required customs duties or applicable taxes, and such duties or taxes are not included on the invoice for the Marketplace Transaction, Buyer will nevertheless be required to reimburse Seller for these amounts upon written request. The Price does not include the applicable Platform Transaction Fee as set forth in Section 11. See Section 11 – Fees. Any sales or use tax required by applicable Legal Requirements to be paid by Buyer shall be collected by GraphiteRx and disbursed to the appropriate taxing authority in accordance with applicable Legal Requirements.
Buyer and Seller acknowledge that, through the Marketplace, We provides certain services related to the Site, including displaying Product and Product pricing information in the Marketplace and providing Buyer the ability to place Orders via the Marketplace. In consideration for such services, Seller shall pay Us an administrative fee (the “Platform Administrative Fee”). In addition, GraphiteRx provides payment processing services to facilitate the payment by Buyer to Seller of the Price for the Products. In consideration for such payment processing services, Buyer shall pay a transaction fee (the “Platform Transaction Fee” and, together with the Platform Administrative Fee, the “Fees”). Buyer and Seller acknowledge that the Fees represent payment for the services performed, and they do not constitute a portion of the Price or markup of the Price and neither MCCP nor GraphiteRx will purchase, sell, possess or take title to any Product. The applicable Platform Administrative Fee will be disclosed to Seller at the time of Product listing and the applicable Platform Transaction Fee will be disclosed to Buyer prior to submission of an Order.
12. Invoices and Payment Terms
Orders will be invoiced on or after the date of shipment. Seller will invoice GraphiteRx as the administrative bill-to party for the purpose of facilitating the transaction with the Buyer. GraphiteRx will re-issue the invoice to the Buyer and such invoice will include the Price, the Platform Transaction Fee, and any payment terms that GraphiteRx makes available to the Buyer pursuant to the Buyer Finance ToS. The invoice will be available to Buyer via GraphiteRx’s Buyer interface and by email. Buyer shall pay GraphiteRx (and not the Seller or MCCP) all invoiced amounts in a timely manner. Invoices that remain unpaid by Buyer past the invoice due date may incur finance charges based on the outstanding balance calculated from the due date until paid at an annual percentage rate of 12% or, if lower, the maximum rate permitted under applicable Legal Requirements.
Buyer and Seller acknowledge that invoices issued in connection with Marketplace Orders may be financed by GraphiteRx through the factoring of such invoices pursuant to the Graphite Financial Solutions Terms of Service for Sellers.
Buyer and Seller further acknowledge that they may not engage in offsets for Marketplace Transactions without GraphiteRx’s prior written consent.
13. Discount Safe Harbor
Buyer will report all discounts on Product in accordance with 42 C.F.R §1001.952(h)(1). Seller will report discounts to Buyer and provide Buyer with information necessary for Buyer to fully and accurately report discounts as required by applicable Legal Requirements applicable to Buyer. Seller will not interfere with Buyer’s compliance with its reporting obligations.
14. Use and Handling of Product
Buyer will ensure Product purchased by Buyer under these Marketplace T&Cs will be used by Buyer solely for Buyer’s “own use”. “Own use” means Buyer will not sell Product purchased under these Marketplace T&Cs to a third party for subsequent distribution or sale unless (i) the Buyer is permitted under applicable Legal Requirements to do so (for example, under an applicable state law’s “Five Percent Rule” for resale), and (ii) the Buyer sells the Product at a price that is equal to or less than the price that Buyer paid for such Product.
Buyer will handle and store Product in accordance with any requirements or standards that are set forth in the Product’s package insert and in good and safe condition.
Product purchased pursuant to these Marketplace T&Cs is eligible for return if Product satisfies one of the following conditions, provided that in the case of clauses (1) through (4), Buyer promptly notified Seller of the issue giving rise to the return in accordance with Section 9:
1) Product was damaged in transit from Seller to Buyer.
2) Product was delivered to Buyer with less than the required shelf life.
3) Product that is unusable due to Product quality concerns arising out of the manufacturing of the Product (i.e., the physical characteristics of the Product deviate from the physical characteristics of the Product described in the prescribing information for the Product).
4) Seller delivered more than the quantity of Product ordered and Buyer elected to reject all or any portion of the excess Product and receive a credit.
5) The return is otherwise permitted by Seller’s Return Policy or Seller has instructed or authorized Buyer to return the Product should be returned.
Buyer will provide notifications under this Section 15 via the Site messaging feature and will follow the return process specified by Seller in Seller’s Return Policy. For clarity, if the terms of these Marketplace T&Cs conflict with Seller’s Return Policy, the terms of these Marketplace T&Cs will control.
Seller will notify Buyer promptly of any recalls initiated by Seller or required by the FDA or other governmental agency. Upon notice of a Product recall, Buyer will promptly notify any affected patients. Seller will supply Buyer with the form of letter to be used in connection with the notice of any recall which shall contain appropriate instructions as to whether patients should return or dispose of the affected Product. Seller will reimburse Buyer for the mailing, shipping, and all reasonable documented administrative expenses incurred by Buyer in connection with the recall as well as the cost of replacement Product for patients by issuing a credit via the Marketplace. Reasonable and documented expenses shall include, but not be limited to: (i) shipping costs to ship replacement Product to patients; (ii) appropriate costs associated with dispensing replacement Product including pharmacist and dispensing labor and labels; and (iii) reasonable communications including patient letters, patient phone calls, and follow-up customer service.
Seller’s Confidential Information shall include Product prices and any other information that Seller posts and labels as “confidential” on the Site.
Buyer’s Confidential Information shall include purchase data and any other information Buyer posts and labels as “confidential” on the Site.
Seller and Buyer shall maintain the confidentiality of all Confidential Information disclosed to them by the other party under these Marketplace T&Cs. All Confidential Information disclosed by a party under these Marketplace T&Cs is and shall remain the exclusive property of the disclosing party and the disclosing party shall retain all rights, title and interest therein.
The restrictions in this Section shall not apply to information that:
(i) a receiving party can show was known to it prior to the disclosure by the disclosing party;
(ii) is or becomes public knowledge through no fault of the receiving party;
(iii) is lawfully disclosed to a receiving party by a third party (other than MCCP or GraphiteRx); or
(iv) is required to be disclosed pursuant to court order or by applicable Legal Requirements.
In the event either party is required to disclose the Confidential Information of the other party by applicable Legal Requirements, regulation, rule, act, subpoena, court or agency, the party anticipating making such disclosure shall:
(i)give the disclosing party sufficient advance written notice to permit it to seek a protective order or other similar order with respect to such disclosure, and
(ii)thereafter disclose only the minimum information required to be disclosed in order to comply with such law, regulation, rule, act, subpoena, court or agency.
18. Representations, Warranties, Covenants & Acknowledgements
Buyer and Seller each represent, warrant, and covenant to the other party that, at the time of the Marketplace Transaction: (i) it is duly organized, validly existing and in good standing under applicable Legal Requirements of its state(s) of formation and the states in which it operates; (ii) it has the authority to enter into these Marketplace T&Cs and perform under these Marketplace T&Cs; (iii) these Marketplace T&Cs constitute a legal, valid and binding agreement, enforceable in accordance with its terms; (iv) it is not party to any other agreement that precludes it from satisfying any of its obligations under these Marketplace T&Cs; (v) the execution, delivery, and performance of these Marketplace T&Cs will not result in a breach or a default under any other agreement or arrangement to which it is a party; (vi) it has all required governmental licenses, permits, certificates, approvals, and authorizations necessary to perform its duties and obligations under these Marketplace T&Cs; (vii) neither it nor any of its employees or subcontractors performing services under these Marketplace T&Cs is excluded from participation in any Government Health Care Program or debarred from federal contracting by any governmental authority and it is not aware of any pending proceedings that would reasonably be expected to lead to any such exclusion or debarment; and (viii) it shall comply with all applicable Legal Requirements in performance of its obligations under these Marketplace T&Cs.
Seller represents, warrants, and covenants to Buyer that: (i) Product sold by Seller through the Marketplace has been approved by the Food and Drug Administration for sale in the United States, and meets all applicable regulatory requirements, including those regarding the adulteration or misbranding of products within the meaning of Section 501 and 502 of the Food Drug And Cosmetics Act ("FDCA"); (ii) Product sold by Seller through the Marketplace will be free and clear from all liens, security interests, or other encumbrances; (iii) at the time of delivery, all Product sold by Seller through the Marketplace will conform to the applicable specifications for the Product and be free from defects in design, material and workmanship; (iv) Product sold by Seller through the Marketplace has been manufactured in accordance with the current FDA Good Manufacturing Practices, as required by 21 C.F.R. §§ 210 and 820; (v) Product sold by Seller through the Marketplace is not an article which may not be introduced into interstate commerce pursuant to Section 505 of the FDCA; and (vi) Product sold by Seller through the Marketplace does not infringe or misappropriate any third party’s intellectual property rights; (vii) Seller complies with applicable labor and employment laws and prohibits any form of child labor or other exploitation of children in the manufacturing and delivery of Products, consistent with provisions of the International Labor Organization’s Minimum Age Convention of 1973. A child is any person who is less than fourteen (14) years of age or who is younger than the compulsory age to be in school in the country in which Seller’s business is being conducted, if that age is higher than fourteen (14). Further, Seller agrees to abide by all applicable requirements mandated by the Office of Federal Contract Compliance Programs of the U.S. Department of Labor for federal government contractors pursuant to Executive Order 11246, the Rehabilitation Act of 1973, Section 503, and the Vietnam Era Veterans' Readjustment Assistance Act, which prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and based on race, color, religion, sex, or national origin. Seller agrees to satisfy all applicable affirmative action requirements to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
If a representation, warranty, or covenant made in these Marketplace T&Cs is no longer accurate, the party making the inaccurate representation or warranty shall promptly notify Us of such fact in writing, and We will disseminate such information to the parties that transacted with the notifying party through the Marketplace.
Buyer and Seller acknowledge that neither MCCP nor GraphiteRx takes title to any Products, takes possession of any Product, marks up the price of any Product or negotiates any Product pricing or associated discounts, which Prices and any associated discounts are established solely by Seller.
Buyer acknowledges that (i) Buyer is not receiving any incentive from MCCP or GraphiteRx to Order or purchase Product from any Seller, or anything of value from Us, except for services to be provided by Us and compensated by Seller and Buyer by way of the Administrative Fees and Transaction Fees, respectively; (ii) Buyer is free to make its own purchasing decisions, and is not obligated to make any purchases via the Marketplace at all; and (iii) MCCP and/or GraphiteRx may advertise in the form of banner ads or other content in the Marketplace, provided that such sponsored content in the Marketplace is clearly identified.
Neither Buyer nor Seller shall attempt to offer or engage the other to complete a transaction involving Products posted by Seller on the Marketplace in a manner designed to circumvent any Transaction Fees associated with the Marketplace by executing the transaction off the Site or otherwise. Buyer and Seller understand that any such activity will be grounds for offending party’s immediate termination from the Marketplace, and We shall be entitled to pursue a claim for damages.
Buyer and Seller (each, as an “Indemnifying Party”) shall, to the fullest extent permitted by law, indemnify, defend and hold harmless the other party, its affiliates and their respective representatives, directors, officers, employees, agents, successors and assigns, and MCCP and GraphiteRx and their respective affiliates and their and their affiliates’ respective representatives, directors, officers, employees, agents, successors and assigns (“Indemnified Parties”) from and against any and all Liabilities to the extent the Liabilities arise out of the Indemnifying Party’s or its representatives’ breach of the Indemnifying Party’s material representations, covenants or warranties contained herein (it being acknowledged and agreed that breaches of representations, covenants and warranties regarding confidentiality and compliance with applicable Legal Requirements are material); provided, however, the Indemnifying Party shall have no obligation to indemnify, defend, or hold harmless the Indemnified Parties to the extent the Liabilities arises out of any Indemnified Party’s breach of the Marketplace T&Cs, negligence or intentional wrongdoing.
The Indemnified Parties shall provide prompt notice to the Indemnifying Party in writing of the Liabilities for which it is seeking indemnification; provided, however, that failure to give timely notice of any Liabilities by the Indemnified Party shall not relieve the Indemnifying Party of its indemnification obligations hereunder unless the defense of the Liabilities are prejudiced by the Indemnifying Party’s failure to give such notice. Upon the Indemnified Party’s request, the Indemnifying Party, at its expense, shall assume control of the defense and resolution of the Liabilities using legal counsel reasonably approved by the Indemnified Party and keep the Indemnified Party informed of the progress of such defense and resolution. The Indemnifying Party shall cooperate fully with Indemnified Parties in connection with the investigation, defense or settlement of any Liabilities arising out of an alleged breach by the Indemnifying party or its representatives of material representations, covenants or warranties contained herein. The Indemnifying Party shall not confess judgment or settle, compromise or resolve any Liabilities without the written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned, or delayed).
20. LIMITATION ON LIABILITY
(a) NEITHER, MCCP NOR GRAPHITERX SHALL BE LIABLE TO ANY OTHER PARTY FOR ANY LOST PROFITS, CONSEQUENTIAL DAMAGES, INCIDENTAL, INDIRECT, SPECIAL, INTERRUPTION OF SERVICES OR OTHER SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE MARKETPLACE T&C’S. IN NO EVENT SHALL MCCP AND GRAPHITERX LIABILITY, IN THE AGGREGATE, ARISING OUT OF OR RELATED TO THESE MARKETPLACE T&Cs EXCEED THE AGGREGATE AMOUNT OF TRANSACTION FEES PAID DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE ACT, OMISSION, OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
(b) NEITHER BUYER NOR SELLER SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, CONSEQUENTIAL DAMAGES, INCIDENTAL, INDIRECT, SPECIAL, INTERRUPTION OF SERVICES OR OTHER SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE MARKETPLACE T&C’S.
Seller will maintain, during the time it displays Products on the Marketplace and for a period of time equal to the longest applicable statute of limitations, at its own expense, the insurance coverage in the amounts set forth below:
Commercial General Liability Insurance - including coverage for premises and operations, products and completed operations, contractual liability, bodily injury, property damage, and personal injury and advertising injury with a minimum policy limit of $5,000,000 per occurrence and $10,000,000 in the annual aggregate.
Products Liability Insurance - including bodily injury and property damage for all Products sold via the Marketplace with a minimum policy limit of $10,000,000 per occurrence and $10,000,000 in the annual aggregate. This coverage can be satisfied through a General Liability policy including coverage for products and completed operations.
Commercial Umbrella Liability Insurance - excess, follow-form coverage above all liability limits required herein with per occurrence and annual aggregate limits of at least $1,000,000.
Buyer and Seller will retain records relating to its obligations under these Marketplace T&Cs for a period of three (3) years after the termination of the latest Marketplace Transaction, or such longer period as may be required by applicable Legal Requirements.
23. Dispute Resolution
NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THESE MARKETPLACE T&Cs INCLUDE A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT RIGHTS ABOUT RESOLVING ANY DISPUTE BETWEEN SELLER AND BUYER OR BETWEEN EITHER OF THEM AND MCCP AND/OR GRAPHITERX.
Buyer and Seller and We will work in good faith to resolve any and all issues, claims, and/or disputes arising out of these Marketplace T&Cs or use of the Marketplace (hereinafter referred to as a “Dispute”) including, but not limited to all questions of the existence, validity, scope, or interpretation of the Marketplace T&Cs or any term contained in these Marketplace T&Cs 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 Buyer and Seller 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.
Buyer and Seller and, if applicable, MCCP and/or GraphiteRx, 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. Buyer and Seller 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 these Marketplace T&Cs are found inapplicable to the Dispute or otherwise unenforceable, this class waiver will continue to apply in litigation. Buyer and Seller agree that this class waiver is an essential element of the Marketplace T&Cs and your use of the Marketplace 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 these Marketplace T&Cs 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 Buyer is a state-owned entity, the capital city of the Buyer’s state. Buyer and Seller agree that Marketplace Transactions 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 these Marketplace T&Cs against the other party shall be entitled to receive attorney’s fees and related enforcement costs if such enforcing party prevails.
25. Drug Supply Chain Security Act Compliance (“DSCSA”)
If “Product” (as such term is defined in the DSCSA) is sold under these Marketplace T&Cs, Seller shall fully comply with the DSCSA, including all requirements to timely provide Buyer with T2/T3 and serialization information.
26. Risk Evaluation and Mitigation Strategy (“REMS”)
If Product is subject to a REMS, Seller shall provide terms and conditions specific to the REMS to Us and We shall provide such terms and conditions to Buyer at the time of Order (“REMS Exhibit”). Buyer shall comply with the terms and conditions set forth within any REMS Exhibit corresponding to a Product for which Buyer has placed an Order via the Marketplace.
No parties shall be deemed to have waived any right under these Marketplace T&Cs, unless such waiver is expressed in a writing signed by such parties. The waiver by either parties of a breach or violation of any provision of these Marketplace T&Cs shall not operate or be construed to be a waiver of any subsequent breach thereof.
28. Headings & Construction
The headings preceding the Sections of these Marketplace T&Cs are inserted as a matter of convenience only and in no way define, limit or describe either the scope of these Marketplace T&Cs or the intent of any provisions of these Marketplace T&Cs.
As used herein, the word “including” shall mean “including, without limitation”.
All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given by delivery in person, by nationally recognized overnight courier or by registered or certified mail (postage prepaid, return receipt requested) to the address each party maintains in its Marketplace profile as its address for notice with a copy to Us. Such notice shall be deemed to be received when delivered if delivered personally, or the next business day after the date sent if sent by a United States national overnight delivery service, or three (3) business days after the date mailed if mailed by certified or registered mail, or upon receipt of confirmation of delivery if sent by facsimile. Any notice of any change in such address shall also be given in the manner set forth above.
Except as provided in Section 24, should any one or more of the provisions of these Marketplace T&Cs be determined to be illegal or unenforceable, all other provisions of these Marketplace T&Cs shall be given effect separately from the provision or provisions determined to be illegal or unenforceable and shall not be affected thereby.
31. Governing Law
These Marketplace T&Cs 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 Buyer is a state-owned entity, the laws of Buyer’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 Buyer is a state-owned entity, the laws of Buyer’s state).
32. Force Majeure
Except for the obligation to pay money, a Buyer or Seller shall not be liable to the other party, in any manner, for failure to meet its obligations under these Marketplace T&Cs to the extent such failure is caused by matters beyond the reasonable control of such party, including strikes, labor disputes, earthquakes, act of Gods, fires, floods, war, public disasters, governmental acts or regulations, or any changes in applicable Legal Requirements that in the reasonable opinion of counsel, could render illegal or unenforceable any of the activities contemplated in these Marketplace T&Cs or have a materially adverse impact on such party or its affiliates.
Except as expressly provided in the Marketplace T&Cs, a party shall not disclose that it has transacted with the other party through the Marketplace, nor originate any publicity, news release or other public announcement, written or oral, in relation thereto, without the prior written consent of the other party(ies), including MCCP and GraphiteRx; provided, however a party may disclose such information to a government agency to the extent required by applicable Legal Requirements.
Each party shall remain bound by any and all terms that, by their nature, survive following conclusion of the Marketplace Transaction conducted pursuant to these Marketplace T&Cs, including but not limited to ownership provisions, records, disclaimers, indemnity, and limitations of liability.
35. Third Parties
Nothing in these Marketplace T&Cs shall be construed or deemed to create any rights or remedies in any third party, provided however, that to the extent that GraphiteRx or MCCP are not parties to any Marketplace T&Cs, Buyer and Seller agree that MCCP and GraphiteRx are third party beneficiaries.
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Phone: (925) 231-0100
This document was last updated on July 24, 2023