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GraphiteRx Financial Solutions
Terms of Service for Sellers

GraphiteRx Confidential
Last Updated on June 26, 2023

 

GraphiteRx Inc. (“GraphiteRx”, “we”, “us” or “our”) makes available payment processing and receivables purchase services (together, the “Financial Services”) to you through this website, any of our other websites or other medium (collectively, “Site”), subject to these Graphite Financial Solutions Terms of Service for Sellers (“Terms”).  We also provide the Financial Services through arrangements with companies that engage us to host marketplace or ordering platforms (“Platform Partners”).

By accepting these Terms or by accessing or using any of the Financial Services or Site, 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 any Financial Service or Site. 

A Financial 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 Financial Services 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 Financial Services

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 Financial Services.  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 and Financial Services by your administrators, users and those using credentials issued to administrators and users is considered use of your Graphite Account and Financial Services 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 Site, the Financial Services, and your Graphite Account(s) 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 or the Financial Services.  We may suspend or terminate access to your Graphite Account and the Financial Services 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 Financial Services is dependent on your completing any required onboarding, and timely and accurately responding to inquiries from us or Service Providers.  As part of the onboarding process and as a condition to your use of the Financial Services, you must designate and maintain a designated bank account (“Bank Account”) for the purposes provided in these Terms.

1.3            Third-Party Service Providers. We may engage third-party service providers (“Service Providers”) to facilitate providing the Financial Services to you, including Stripe Inc. for payment services and Balance Payments, Inc. for receivables purchase services and other payment services. Our Service Providers are engaged by us and are not providing you any payment or financial services 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 Financial Services is also dependent on your timely and accurately providing information reasonably requested by us or Service Providers to assess whether the Financial Services 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 that we may rely on it.  You also acknowledge and agree that we may provide this information to Service Providers in order to provide the Financial Services to you. 

           

1.5            Your Limited Agent. You appoint us as your limited agent for the purpose of enabling your access to, and use of, the Financial Services.  As your agent, you authorize us and our Services Providers to take actions, make requests, and facilitate transfers to your Bank Account on your behalf consistent with these Terms.  You represent, warrant and covenant that we and our Service Providers can rely on your authorizations, requests and instructions, and that we and our Service Providers will have no liability for executing the authorizations, requests and instructions you provide.  During onboarding, you will complete a Seller Certification memorializing our limited agency.  In acting as your agent, we and our Service Providers do not assume liability for any of your acts or omissions.

2.               Payment Processing

2.1            Payment Processing Service.  We make available payments functionality (“Payment Processing Service”) that enables you, as a seller, to accept payments from Buyers through us (each, a “Payment”).

2.2            Payment Processor 

2.2.1        We may designate one or more Service Providers to help make available the Payment Processing Service to process Payments (“Payment Processor”).  Your use of the Payment Processing Service will be subject to the terms, conditions, privacy and other policies, and agreements of Payment Processor (collectively, “Payment Processor Terms”) and the Payment Rules (defined in Section 4.13).

2.2.2        If we add a new Payment Processor or replace a Payment Processor, we will notify you.  If we add a new Payment Processor, your use of the Payment Processing Service will be subject to the new Payment Processor’s Payment Processor Terms. 

  

2.2.3        We or the Payment Processor may suspend or terminate the provision of the Payment Processing Service to you at any time in the event you have violated the Payment Processor Terms, these Terms, or Applicable Requirements (defined in Section 4.13, or for other risk concerns. We may suspend your access to all or part of the Financial Services, or terminate these Terms, if Payment Processor suspends or terminates its provision of the Payment Processing Service to you. Any suspension or termination does not relieve any obligation we, Payment Processor or you have, or affect any right either of us have, prior to suspension or termination.   

2.3            Sharing Information with Payment Processor.  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 Processing Service, including information about your Bank Account to enable the Financial Services. 

2.4            Disclosures.  You agree to timely and accurately provide information requested by us or Service Providers so that we or Service Providers may inform Buyers of: (a) your identity and the address of your fixed place of business; (b) your terms and conditions of the sale including delivery policy and returns and cancellation policies (which policies must be clear, fair, and comply with Applicable Requirements); (c) date on, and currency in which, any charges will commence; (d) your dispute and complaint policy and procedure, customer service email and telephone contact details; and (e) your privacy policy.

2.5            Payment Settlement.  You authorize Payment Processor and us to initiate ACH credit and debit entries to your Bank Account for the purpose of crediting Payment settlement amounts and other amounts due to you, and debiting any amounts that may have been credited in error.  You are responsible for Returns and any credits related thereto.  You also authorize Payment Processor and us to effectuate net settlement, setting off any Returns or other amounts owed, including against any Purchase Price (defined in Section 4.13) for Receivables purchased pursuant to Section 3.  “Returns” means any chargeback, reversal, return, refund, adjustment, fine, penalty, charge, fee, loss, and any other liability relating to any Payment, Order or any underlying transaction. 

2.6            Merchant of Record.  As the seller of goods or products to Buyers, you are the merchant of record for Payments and assume all of the responsibilities of a merchant under the Payment Rules.  In the event we or Service Provider pays any amount to Payment Processor or other third party on behalf of you or that you are responsible for, you will owe that amount to us and we may exercise any of our rights under these Terms or any other agreement or terms we have with you to recover that amount. 

2.7            Unauthorized Transactions.  You agree that you are liable for any losses incurred by us and any Service Provider as a result of any unauthorized, fraudulent, improper or erroneous use of the Payment Processing Service.

3.               Receivables Purchase

3.1            Trade Limit.  A Trade Limit will be established by us or Assignee for each Buyer in our or Assignee’s sole discretion. 

3.2            Sale and Purchase Process. The purchase and assignment of Purchased Receivables will occur as follows:

3.2.1        Via a platform powered by GraphiteRx, we process Buyer orders to purchase goods or products from you (“Orders”).  Prior to submitting an Order to you from a Buyer, we will confirm that the Order, if confirmed by you within one (1) business day and fulfilled by you within no more than five (5) business days from the Order date, meets the Trade Limit and if the transaction for the Order is consummated, we will purchase the Receivable generated by an Invoice issued for any such Order unless there is a Receivables Issue (as defined in Section 3.5). The Invoice and related Receivable for an Order may not exceed the amount of the Order that we submit to you. 

3.2.2        Once you fulfill the Order, you will issue us an Invoice for Buyer for the products that you ship to Buyer as part of that transaction.  We will reissue the Invoice to Buyer. In reissuing the Invoice, we may revise the Invoice to include (a) remittance information to a separate account used for payment processing, (b) the correct payment due date for Buyer based on the payment terms offered to Buyer, (c) a late fee in an amount or rate not prohibited by applicable law, and (d) certain disclosures required to inform Buyer of the Financial Services, including the purchase by us or a Service Provider of a Purchased Receivable.

The sale of any Receivable is consummated upon issuance of the Receivable to us. The payment date for the Purchase Price for such Purchased Receivable will be agreed upon in writing by you and us or the Platform Partner (if applicable) and will be included in the Invoice as the due date for the Invoice.  Unless there is a Receivables Issue, the Purchase Price will be remitted to your Bank Account by us or our designee on the agreed upon Invoice due date.  Upon issuance of the Receivable to us, all of your right, title and interest in the Receivable and the related Invoice are absolutely and irrevocably sold and transferred to us. We do not assume any liabilities or obligations related to any Receivable and its Invoice; any such liabilities and obligations remain with you.   

3.2.3        Both you and us will, at all times, treat the purchase and sale of each Purchased Receivable as a purchase by us and a sale by you for federal, state, and local income tax purposes.

3.2.4        Following the purchase and sale of each Receivable, we intend to assign the Purchased Receivable to a third party (“Assignee”).

3.3            Purchased Receivables Payments.  Following the purchase and sale of any Receivable from you to us, you will (a) not be entitled to collect or receive any amount in connection with such Purchased Receivable; (b) hold any payment on such Purchased Receivable which may come into your possession or control (even if such payment is payable to you) in trust for the benefit of us or Assignee, and promptly deliver to us or Assignee all such payments (and indorse any payment instrument which is payable to you); (c) not hinder, delay or interfere with any payment of such Purchased Receivable or any of its terms; and (d) assist us or Assignee in servicing, collecting and administering the Purchased Receivable, including following any of our or Assignee’s reasonable instructions regarding same.  You will promptly inform us of any disputes of Buyer regarding any aspect of a Purchased Receivable or Invoice of which you have knowledge, including any Receivables Issue.  You agree to follow any reasonable instruction provided by us regarding how to respond to the dispute, including permitting us or Assignee to respond to the dispute.

3.4            Receivables Representations and Warranties.  You represent and warrant to us and our Service Providers with respect to each Purchased Receivable immediately prior to the purchase and sale of such Purchased Receivable from you to us, or such other time expressly provided, including through the date of payment of the Purchase Price to you, that:

3.4.1        the goods and products underlying such Purchased Receivable have been fully delivered or rendered to Buyer;

3.4.2        such Purchased Receivable is valid and owing pursuant to all contracts, terms, and agreements to which you are a party, including your agreement with Buyer, which may not be modified or amended without our prior written consent;

3.4.3        the terms and conditions of such Purchased Receivable have not been waived, altered, modified or amended in any respect following the Receivable’s origination;

3.4.4        (a) such Purchased Receivable is not contingent in any respect for any reason and constitutes a legal, valid, binding and unconditional payment obligation of Buyer, is fully enforceable against Buyer for the amount of such Purchased Receivable, and is not subject to any defense, counterclaim, recoupment, discount, adjustment or right of setoff or rescission, except to the extent that enforceability may be limited by Debtor Relief Laws and general principles of equity; (b) there are no conditions precedent to the enforceability or validity of such Purchased Receivable that have not been satisfied or waived; (c) Buyer owing such Purchased Receivable has no bona fide claim against you; (d) such Purchased Receivable is not and will not be subject to dispute between Buyer and you, including with respect to the cost or quality of goods or products sold; and (e) there are no Proceedings existing, pending or, to your knowledge, threatened against or affecting you, which could materially and adversely affect such Purchased Receivable or could affect the validity, enforceability or collectability of such Purchased Receivable;

3.4.5        the transfer of such Purchased Receivable from you to us complies with Applicable Requirements, and such Purchased Receivable is not subject to any law under which the sale, transfer, assignment, setting over, conveyance or pledge of such Purchased Receivable would be unlawful, void or voidable;

3.4.6        You are the sole owner of such Purchased Receivable and have good and marketable title to such Purchased Receivable, and you have the right to assign, sell and transfer such Purchased Receivable to us free and clear of any lien, pledge, charge, claim, security interest or other encumbrance, and you have not sold, assigned or otherwise transferred or conveyed any right or interest in or to such Purchased Receivable, have not pledged such Purchased Receivable as collateral for any debt or other purpose, nor have you authorized the filing of, or are you aware of the filing of, any financing statement or lien against you that includes a description of collateral covering any portion of such Purchased Receivable;

3.4.7        upon purchase by us: (a) the Purchased Receivable becomes our sole property; (b) your sale of such Purchased Receivable passes legal and equitable title in such Purchased Receivable to us free and clear of liens, claims and encumbrances; and (c) we will have the right to assign, sell, transfer and pledge such Purchased Receivable to any person without limitation;

3.4.8        no consents or approvals are required by the terms of such Purchased Receivable or otherwise for the consummation of the sale, transfer or assignment of such Purchased Receivable or the rights and duties of the holder of such Purchased Receivable, and such Purchased Receivable is not subject to any restriction on the ability of the holder of such Purchased Receivable to exercise its rights;

3.4.9        such Purchased Receivable is not and will not become subject to a defense or claim in recoupment or setoff asserted against us or Assignee;

3.4.10      payments on such Purchased Receivable are payable to you;

3.4.11      to your knowledge, such Purchased Receivable and Buyer are not subject to or restricted by any receivership, insolvency or bankruptcy proceeding;

3.4.12      You have not received any notice of (a) actual or imminent bankruptcy insolvency or material impairment of the financial condition of Buyer or (b) actual or threatened litigation regarding the validity or enforceability of such Purchased Receivable;

3.4.13      to your knowledge, you, on the one hand, and Buyer, on the other hand, are not engaged in any litigation, mediation, or arbitration whatsoever with respect to each other, and neither has threatened the other in writing with any litigation, mediation, or arbitration;

3.4.14      such Purchased Receivable constitutes an “account”, a “payment intangible” or proceeds thereof and is not an “instrument”, “chattel paper” or “electronic chattel paper” (each such term as defined in the Uniform Commercial Code as in effect, from time to time, in each applicable jurisdiction);

3.4.15      such Purchased Receivable is evidenced by an Invoice that (a) is complete and accurate in all respects, and (b) has been issued to and received by Buyer;

3.4.16     such Purchased Receivable is a Qualified Receivable; and

3.4.17      You are not engaged, and will not at any time engage, in any business, activities or practices which are prohibited by Applicable Law or use the Financial Services in any manner which would cause us or our Service Providers to violate Applicable Law.

The representations and warranties in this Section 3.4 apply as of the date each Purchased Receivable is purchased and survive its purchase to us and any assignment to Assignee.‍

You agree to notify us within two (2) business days of your obtaining knowledge of any breach of any representation or warranty in this Section 3.4, and promptly provide us any information regarding the breach that we request.

3.5            Receivables Issues. You agree that in any event of cancellation, return, complaint or dispute (“Receivables Issue”) that arises between Buyer and you as to the goods or products underlying a Purchased Receivable you will (a) promptly inform us of the Receivables Issue and fully and promptly cooperate with us in investigating the Receivables Issue; and (b) if requested by us, cancel or reissue a corrected Invoice following our reasonable instructions in order to ensure that Buyer will pay us or Assignee the full amount due for the Purchased Receivable.  You understand that the payment for the purchase of the Purchased Receivable by us will be suspended until the Receivables Issue is resolved with the Buyer. If a Receivables Issues arises after the Purchase Price for a Purchased Receivable paid for by us, you will repurchase the Purchased Receivable in accordance with Section 3.6.

3.6            Receivables Repurchase

3.6.1        If you breach any of the representations and warranties in Section 3.4 with respect to any Purchased Receivable or its Invoice or there is a Receivables Issue concerning any Purchased Receivable or its Invoice, following your receipt of a repurchase notice from us, you will repurchase any such Purchased Receivable from us or Assignee on a date designated by us (which will be no sooner than five (5) business days after your receipt of the repurchase notice) by paying the Repurchase Price to a bank account designated by us on such date.  Following payment of the Repurchase Price, we or Assignee will transfer ownership of the Purchased Receivable to you and do all things reasonably requested by you to vest ownership of, and control over, such Purchased Receivable to you.

3.6.2        If you do not pay the Repurchase Price within five (5) business days of the date designated by us, we may effect payment of the Repurchase Price by netting or offsetting the amount of the Repurchase Price from the Purchase Price to be paid to you for other Receivables or amounts due you under the Payment Processing Service.

‍3.7            Notices to GraphiteRx. You will promptly notify us of your obtaining knowledge of: (a) any Receivables Issue or dispute related to a Purchased Receivable; (b) any breach of any of your covenants or agreement in these Terms; (c) your discovery of evidence of insolvency of a Buyer whose Receivable is a Purchased Receivable; or (d) any Proceeding related to a Purchased Receivable or involving a dispute between you and Buyer.

‍3.8            Power of Attorney. You appoint us and our successors and assigns and our Service Providers as your true and lawful attorney-in-fact with power of substitution and with limited but full power and authority to:

3.8.1        endorse your name on any notes, checks, drafts, money orders, or other instruments of payment as required to enforce our or Assignee’s rights with respect to any Purchased Receivable;

3.8.2        sign and endorse your name on any Invoice, drafts against Buyers, assignments, verifications, demands under letters of credit and notices in connection with any Purchased Receivable;

3.8.3        communicate directly with Buyers to verify the amount and validity of any Purchased Receivable, to collect payment, and to resolve disputes, including executing any agreement compromising and settling any dispute arising out of any Purchased Receivable;

3.8.4        bring suit to collect any Purchased Receivable;

3.8.5        amend the terms of any Purchased Receivable;

3.8.6        execute any financing statements (including amendments) to perfect our or Assignee’s security interest in any Purchased Receivables; and

3.8.7        notify any Buyer obligated with respect to any Purchased Receivable that the Purchased Receivables has been assigned to us or Assignee and that payment is to be made directly and solely to us or Assignee.

As your attorney-in-fact, we and our assigns and our Service Providers are granted full power to do all necessary things to accomplish the above as fully and effectively as could you. This limited power of attorney is irrevocable until full payment for all Purchased Receivables has been made to us or the purchaser or transferee of such Purchased Receivables.

4.              General Provisions

4.1            Indemnification. You agree to indemnify and hold harmless us and our Platform Provider (if applicable) and 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 sale of goods or products related to any Financial Service.

4.2            Termination. We have the right to temporarily suspend or permanently terminate your use of the Financial Services, 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 any Financial 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.

4.3            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 1.1, 1.5, 3.4, 3.6 - 3.8, and 4.1 - 4.14. 

4.4            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 to the email or mailing address listed below under “Contact Us”.

4.5            Entire Agreement; Waiver; Severability; Assignment; Third Party Beneficiaries.  These Terms, any Additional Terms and all terms and conditions, terms of use, fee agreements and policies referenced in these Terms, represent the entire agreement between you and us with respect to the subject matter hereof and supersede any and all prior and contemporaneous written and oral representations, understandings, and agreements between us. In the case of a conflict between these Terms and any separate agreement or terms with us, a Platform Partner or any third party, these Terms will always govern with respect to the subject matter set forth herein. A waiver or failure to exercise in any respect any right provided hereunder will not be deemed a waiver of such right in the future or a waiver of any other rights established herein or under law. If any provision of these Terms is found to be invalid, the parties nevertheless agree that the trier of fact should endeavor to give effect to the parties’ intentions as reflected in these Terms and that the remainder of these Terms will remain in full force and effect. Nothing in these Terms will be construed as constituting a partnership or joint venture between the parties.  These Terms are freely assignable by us. You may not assign these Terms without our prior written consent.  These terms and the rights hereunder will bind and inure to the benefit of the parties and their successors and permitted assigns.  Except as may be expressly provided in these Terms, including the references to Service Providers herein, no provision of these Terms is intended to provide, confer or create any third-party beneficiary rights or any other rights of any kind in any person except Service Providers or other persons expressly provided for herein.

4.6            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.

4.7            Arbitration; Class Waiver

 

4.7.1        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 Account(s), Financial Services 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.

4.7.2        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).

4.7.3        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.

4.8            Limitation on Liability

4.8.1        NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, WE, OUR SERVICE PROVIDERS, OUR PLATFORM PARTNERS, 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 OF THE THESE TERMS OR SUBJECT MATTER OF 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 THE GREATER OF (I) THE FEES PAID BY YOU TO US (OR OUR PLATFORM PARTNER, IF APPLICABLE) UNDER THESE TERMS IN THE TWELVE (12) MONTHS PRIOR TO THE ACT, EVENT OR CIRCUMSTANCE THAT GAVE RISE TO THE LIABILITY, OR (II) $25,000, IN EACH CASE, 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.

4.8.2        Your acceptance of this limitation of liability is an essential term and we would not provide you with the Financial Services or access to your Graphite Account(s) 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.

4.9            No Implied Warranties.  We, our Platform Partner, and our Services Providers do not warrant that the Site and the Financial Services 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 Financial Services or Site. YOUR USE OF THE FINANCIAL SERVICES AND SITE IS AT YOUR OWN RISK.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SITE AND THE FINANCIAL SERVICES 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.

4.10          Confidentiality.

4.10.1      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 or Financial Services, 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.

4.10.2      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.

4.10.3      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.

4.10.4      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.

4.10.5      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.

4.10.6      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.

4.10.7      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.

4.10.8      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.

4.10.9      Notwithstanding the foregoing, the parties acknowledge and agree that this Section 4.10 does not apply to any information that is subject to a separate use agreement, including, for example, agreements on posting and managing product pricing information.

4.11     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. Fees that apply to you will not change without a separate written agreement with us or our Platform Partner reflecting such change. If we cannot reach agreement on Fee changes, we may terminate your use of the Financial Services and these Terms. 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 Service, or changes made to comply with Applicable Requirements or Service Provider requirements, or to address any risk concern of ours may be effective immediately. By continuing to use the Financial Services after a change to these Terms is effective, you accept and agree to the changes. You are expected to check the Site and your Graphite Account from time to time so you are aware of any changes.

4.12     Force Majeure Event.  If a party is unable to perform any of its obligations in these Terms by reason of a Force Majeure Event, then the performance of such obligations will be excused during the continuance of the inability so caused.  A party experiencing a Force Majeure Event will promptly notify the other party of the Force Majeure Event.  To the extent that the party not affected by a Force Majeure Event is unable to perform any of its obligations in these Terms because a prerequisite obligation of the affected party has not been performed, the party not affected by a Force Majeure Event also is excused from such performance while the affected party is unable to perform.  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).  Notwithstanding the foregoing, no party will be relieved of any of its payment or reimbursement obligations hereunder. 

 

4.13     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.

“Applicable Requirements” means any Applicable Law; Payment Rules; our written policies, procedures, guidelines and requirements related to the Financial Services; and the terms of any of our agreements or terms of service or terms of use with you. 

“Buyer” means a purchaser of one or more of your products through an Order.

“Debtor Relief Laws” means (a) Title 11 of the United States Code and (b) all other applicable liquidation, conservatorship, bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization, suspension of payments, adjustment of debt, marshaling of assets or similar debtor relief laws of the United States, any state or any foreign country, from time to time, in effect affecting the rights of creditors generally.

“Fee” means with respect to a Receivable and its Purchase Price, an amount that is set forth in a separate written agreement that you have with us or our Platform Partner reflecting the fee that you will be charged for the use of such solutions, which includes our receivables purchase service.

“Invoice” means a bill evidencing a Receivable created by you and provided to us as an administrative bill-to party for the sole purpose of providing the Financial Services.

 

“Payment Rules” means any and all applicable bylaws, rules, regulations, terms, conditions, guidelines, policies, procedures, standards, protocols, programs and any other requirements of Mastercard, Visa, Discover, National Automated Clearing House Association and any other card association or payment network.

“Proceeding” means any suit in equity, action at law or other judicial or administrative proceeding.

“Purchase Price” means, with respect to a Receivable, the face amount of the applicable Invoice minus the Fee.

“Purchased Receivable” means a Receivable purchased by us from you as provided in Section 3. 

“Qualified Receivable” means a Receivable or Purchased Receivable for which each of the representations and warranties in Section 3.4 are true and correct in all respects. 

 

“Receivable” means an amount evidenced by an Invoice owed to you by the relevant Buyer for products that have been delivered to Buyer by you or a third party acting on your behalf.

“Repurchase Price” means, with respect to any Purchased Receivable repurchased as provided in Section 3.6, the related Purchase Price minus any payments made on such Purchased Receivable by Buyer.

“Trade Limit” means the maximum amount of a specific Buyer’s Receivables that we will purchase established by us or Assignee (defined in Section 3.2.4).  

4.14     Construction

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”.

 

Contact Us

You may contact us regarding these Terms through any of the following means:

Email: info@GraphiteRx.com

Phone: (925) 231-0100

By mail:

GraphiteRx Inc.

Attn: Legal

210 25th Ave. North, Suite 1210

Nashville, TN 37203

This document was last updated on June 26, 2023

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