This Commercial Use Agreement (“Agreement”) is entered into by and between PharmXa, (“PharmXa”) and the individual or entity completing the registration process associated with this Agreement (“Participant” or “You”). By completing such registration or otherwise accessing or using PharmXa.com or the PharmXa Services, you acknowledge that You have read, understood, and agree to be bound by the terms and conditions of this Agreement.
This Agreement is subject to the Terms and Conditions of Use, except as stated in the Terms and Conditions of Use, PharmXa will not provide any additional services and has no other obligations to You. PharmXa makes no assurance that information provided by participants of PharmXa pharmacies is true and accurate. PharmXa makes no promises and in no way warrants the condition, quality, quantity, merchantability, or anything else with respect to any pharmaceuticals.
You are solely responsible for all services and products provided by participants. Unless otherwise prohibited by applicable law, you release PharmXa from and waive all claims, demands, and causes of action of every kind and nature, known and unknown, which exist or hereafter arise against PharmXa related in any way to such claim or dispute between any party over Participant Services. PharmXa reserves and shall have the right to cancel any transactions processed with inaccurate information submitted by any Participants, and the return of any amount paid by you to PharmXa in the cancelled transaction shall be your sole remedy. ACH is processed by 3rd party who can take legal action if needed when needed.
You agree to provide information reasonably requested by PharmXa related to registration, the PharmXa Services or Participant Services, and by becoming a Participant, you certify that all information you provide to PharmXa ("Participant Information"), whether through the registration process or otherwise will be true, accurate, current, and complete. You will indemnify and hold PharmXa harmless from any and all loss, liability, cost, damage and expense it may incur because of any inaccurate Participant Information you provide at any time, as well as any Participant Information which becomes inaccurate.
Buyer will choose FedEx shipping option and accept the charges upon confirmation from the Seller (Including FedEx fees and administrative fees per order that can't be disputed by either the seller or the buyer). As soon as the Seller confirms your order, you will receive an email from PharmXa.com or you can view it under “manage order” (Buy Orders/Sell Orders). Sellers will be charged a 10% service fee and $2.50 per transaction processing fee to their ACH account on file (Premium sellers will be charged 15% instead of 10%). Once you receive your order, immediately confirm your order was received on PharmXa.com. All shipped orders will be marked by PharmXa.com as “received” after the 2nd business day of delivery confirmation by FedEx tracking if not done so by the Buyer. PharmXa.com does not require a minimum number of prescription drugs to be listed by the Seller. There will be a charge of $0.50 for the initial ACH account set up and anytime modified. Sellers accept any additional charges assessed for any order at any given time.
PharmXa controls and operates PharmXa.com from its offices within the United States. If You choose to access PharmXa.com from locations outside the United States, you do so at Your own risk and are responsible for compliance with all applicable local laws.
You agree that Your rights and obligations under this Agreement, as well as Your use of PharmXa.com and the PharmXa Services, shall be governed by and construed in accordance with applicable laws of the United States, without regard to conflict of laws principles.
Buyers and sellers (“Trading Partners”) represent and warrant that all transactions conducted through PharmXa comply with 21 C.F.R. § 205.3(f)(6).
Any dispute, claim, or controversy (“Dispute”) arising out of or relating to this Agreement, PharmXa.com, or the PharmXa or Participant Services shall be resolved exclusively and finally by binding arbitration, except as expressly provided herein.
Prior to initiating arbitration, the parties agree to engage in good faith efforts to resolve the Dispute for a period of thirty (30) days following written notice of the Dispute. If the Dispute is not resolved within such period, it shall be submitted to binding arbitration administered by the American Arbitration Association in accordance with its then-current Commercial Arbitration Rules.
The arbitration shall be conducted by a single arbitrator selected in accordance with such rules, who shall have demonstrable experience in commercial and online marketplace transactions. To the maximum extent permitted by applicable law, the arbitrator shall not have authority to award consequential, incidental, punitive, or exemplary damages.
Any arbitration must be commenced within one (1) year after the Dispute arises or is discovered, or it shall be permanently barred. The arbitration shall be conducted in a location within the United States designated by PharmXa, and You expressly consent to such forum and waive any objection based on inconvenience or improper venue.
To the fullest extent permitted by law:
Small Claims Option: Notwithstanding the foregoing, either party may elect to bring an individual Dispute to a small claims court of competent jurisdiction, provided the Dispute qualifies for such court and remains on an individual (non-class) basis.
Fee-Shifting: To the fullest extent permitted by applicable law, the prevailing party in any arbitration or permitted court proceeding shall be entitled to recover its reasonable attorneys’ fees, costs, and expenses from the non-prevailing party.
Liquidated Damages: You acknowledge that certain breaches of this Agreement, including but not limited to misuse of the platform, circumvention of PharmXa, or violation of applicable transaction requirements, would result in substantial harm to PharmXa that is difficult to quantify. Accordingly, in the event of such breach, you agree that PharmXa shall be entitled to recover liquidated damages in an amount reasonably estimated to reflect such harm, as determined by the arbitrator, in addition to any other remedies available at law or in equity. The parties agree that such liquidated damages are not a penalty but a reasonable estimate of anticipated damages.
Each party shall bear its own attorneys’ fees and costs, except as otherwise provided herein, and the parties shall share equally in the fees and expenses of the arbitrator unless otherwise required by applicable law or determined by the arbitrator.
Notwithstanding the foregoing, PharmXa may seek injunctive or equitable relief at any time in any court of competent jurisdiction to protect its intellectual property, confidential information, or other proprietary rights, and You consent to the jurisdiction of such courts for these purposes.
PharmXa is an independent contractor and shall not at any time or under any circumstances be considered an agent or representative of any Participant of PharmXa.com. No joint venture, partnership, or like relationship is created between the parties by this Agreement.
In the event of a conflict between this Commercial Use Agreement and the General Terms and Conditions, an interpretation of the conflicting provisions that allow for both to be implemented shall be followed. In addition, in the event there are shared provisions between this Commercial Use Agreement and the General terms and Conditions, the strictest provision shall apply.
The headings of the sections in this Agreement are strictly for convenience of reference only and shall not in any way be construed as amplifying or limiting any of the terms, provisions or conditions of this Agreement. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason: (a) such invalidity or unenforceability shall not affect any other provision of this Agreement; (b) the remaining terms, covenants and conditions hereof shall remain in full force and effect; and (c) the invalid or unenforceable provision shall be automatically modified, with the least changes necessary, so as to make it valid and enforceable. No failure to exercise and no delay in exercising, by PharmXa, any right, power or privilege under this Agreement shall operate as a waiver thereof, except as otherwise expressly provided in this Agreement or in writing by PharmXa's president. Any waiver by PharmXa of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless and until agreed to in writing by PharmXa.
All notices and communications concerning this Agreement shall be in writing and addressed to PharmXa as follows:
Attn: Legal DepartmentNotices shall be sent by certified U.S. Mail, return receipt requested, or by commercial overnight delivery service which provides acknowledgement of delivery and shall be deemed delivered: if sent by U.S. Mail, five (5) days after deposit, or if sent by commercial overnight delivery service, upon verification of receipt.
PharmXa reserves the right to amend the terms of this Agreement at any time, for any reason, and without notice, including the right to terminate the PharmXa or Participant Services or any part thereof. Any amendments and modifications made by PharmXa will be prospective only, and unless otherwise provided in this Agreement, will be effective upon being posted on PharmXa.com.
This Agreement is effective until changed or modified by PharmXa or terminated by you or PharmXa for any reason whatsoever. If you no longer agree to be bound by this Agreement (as amended from time to time), you must cease use of PharmXa.com. PharmXa reserves the right to suspend or deny, in its sole discretion, your access to all or any portion of PharmXa.com with or without notice at any time and for any reason. You agree that any termination, restriction, or suspension of your access to PharmXa.com may be made without prior notice, and you acknowledge that PharmXa may immediately deactivate or delete your account and all related information and files in the account and bar you from any further access to the files or PharmXa.com. You agree that PharmXa shall not be liable to you or any third-party for any termination, restriction, or suspension of access to PharmXa.com under any circumstances whatsoever. You agree that PharmXa has the right, but is not obligated, to monitor your use of PharmXa.com and any communications made by you related to such use in any manner. You release PharmXa from any liability relating to its monitoring activities. PharmXa may also warn its Participants of any actual or suspected improper actions by you. If PharmXa denies you access PharmXa.com, you agree to destroy all materials obtained from PharmXa.com and all copies of those materials with the exception of your personal account materials. User/Member agrees to provide any requested documents (Via Email) within 48 hours of any request. Failure to comply within this time frame will result in penalties, including account termination and loss of credits due.
This Agreement, and any policies referenced in this Agreement, constitute the entire agreement between you and PharmXa related to PharmXa.com and the PharmXa Services. All prior agreements, representations, statements, negotiations, and undertakings with respect to the subject matters of this Agreement are superseded by the provisions of this Agreement. Neither this Agreement nor any of its provisions may be amended, altered or added to in any manner except as set forth in a duly authorized amendment to this Agreement or otherwise in writing and signed by the chief operating officer of PharmXa. If there is a conflict between the terms of this Agreement and any terms appearing on PharmXa.com or in any policies, those terms that are most favorable to PharmXa shall govern.
The provisions of this Agreement that by their nature are intended to survive beyond the termination, cancellation or expiration of this Agreement shall survive.
(a) Consent. By clicking the "I Agree" button below, you consent to receive notices solely in electronic format from PharmXa. Please regularly check PharmXa.com for updates to notices. We will post to PharmXa any changes in hardware or software requirements needed to access the notices.
(b) Delivery Considerations. To access PharmXa.com, you must have access to a personal computer with appropriate and compatible browser software and access to the Internet. To print and save notices, you must have access to a printer.
(c) Duration and Withdrawal of Consent. Your consent will be effective indefinitely. We reserve the right to send you paper copies of any documents or notices that you have consented to receive electronically or that are not available electronically and to discontinue sending updated notices electronically to you at any time.
You agree that you have read, understand, and bound by, meet, and will continue to meet, all the terms and conditions above, (b) agree that you are providing the legal equivalent of your handwritten signature, and (c) agree to print and/or save a copy of this Agreement for your records. This Agreement is effective upon completion of registration, please scroll up through this Agreement to review important provisions regarding arbitration, limitation of PharmXa's and its content providers' liability, waivers and indemnities, and other important provisions. The fees and other charges for PharmXa's Services are based upon your acceptance, and enforceability, of the arbitration, liability limitations, waivers and indemnity provisions -- in absence of which such fees and costs would be increased to compensate for the potential additional business expenses.