1. DESCRIPTION OF SERVICES. Beginning on the Effective Date, Discount Pharms will provide to Vendor and Buyer marketplace services as follows:
Discount Pharms will assist Vendors in advertising and marketing the Vendors’ services;
Discount Pharms will assist Buyers in locating Vendors that can meet the relevant Buyer’s needs.
Discount Pharms will make its reasonable best efforts to provide the services set forth in this Section 1; however, each of Buyer and Vendor acknowledges and agrees that Discount Pharms makes no guarantees or promises about the results that it is able to achieve.
This Agreement shall also be subject to the Discovery and the Nondisclosure Agreement between and among the Parties, if any. To the extent there is a Discovery and/or Nondisclosure Agreement between and among the Parties, they are attached hereto as Exhibits A and B, respectively.
2. DISCOUNT PHARMS IS A MARKETPLACE; LIMITATION OF LIABILITY. Discount Pharms acts as a marketplace between the Vendor and the Buyer. Discount Pharms is not a party to any agreement between Buyer and Vendor, and is not liable to either Buyer or Vendor for any loss incurred as the result of a Buyer’s or Seller’s acts or omissions.
Each of Buyer and Vendor acknowledges and agrees that it is solely responsible for ensuring that it complies with all relevant federal, state, municipal, or other laws at all times, and that it has obtained any licenses, permits, or clearances required to perform under this Agreement. As provided further in Section 6, Discount Pharms has no responsibility or liability for any Party’s failure to comply with this Section 2, and each of Buyer and Vendor agrees to indemnify Discount Pharms for any damages resulting from such failure pursuant to Section 6 of this Agreement.
4. PAYMENT. Payment by Buyer will be made in accordance with any terms and conditions supplied by Vendor (the “Vendor Terms”). Buyer represents and warrants that it will make all payments in accordance with the Vendor Terms, including without limitation making any required deposit and making all payments in a method approved by the Vendor.
Vendor acknowledges and agrees that Discount Pharms has no control over Buyer’s payments or lack thereof, and that Discount Pharms will have no liability therefor, as more fully set forth in Section 6.
5. TERM. This Agreement will remain in effect unless and until cancelled by the Buyer or Vendor, in accordance with the Vendor Terms, or until cancelled by Discount Pharms upon immediate notice to the Buyer and Vendor.
6. LIMITATION OF LIABILITY; INDEMNIFICATION. In no event shall Discount Pharms be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to this Agreement.
Each of Buyer and Vendor further agreea to indemnify and hold Discount Pharms, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, arising out of or related to this Agreement.
7. FORCE MAJEURE. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the Party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
10. SEVERABILITY. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
11. AMENDMENT. This Agreement may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party obligated under the amendment.
12. GOVERNING LAW. This Agreement shall be construed in accordance with the laws of the State of California.
13. NOTICE. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, or sent by electronic mail, to the address provided by the relevant Party to the other Parties.
14. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
15. ASSIGNMENT. Neither party may assign or transfer this Agreement without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date first above written.