USER AGREEMENT

TERMS & CONDITIONS

Last Updated 8/18/2020

1. Introduction

This User Agreement and all policies and additional terms posted on and in our site, applications, tools and our proprietary SoSRx platform (collectively "Services") set out the terms on which Exchange Health offers you access to and use of our Services. All policies and additional terms posted on and in our Services are incorporated into this User Agreement. You agree to comply with all terms of this User Agreement when accessing or using our Services.

The entity you are contracting with is: Exchange Health LLC, a Michigan Limited Liability Company, having its place of business at 45340 Hanford Road Canton, MI 48187 collectively referred to as "EH," "we," or "us."

2. About EH and SoSRx

EH, through our proprietary platform SoSRx, is a marketplace that allows users to offer, sell and buy Pharmaceutical Products (as defined below). The actual contract for sale is directly between the Manufacturer and Buyer.

Any guidance we provide as part of our Services, such as pricing, shipping, listing, and sourcing is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, EH has no control over and does not guarantee: the existence, quality, safety or legality of the Pharmaceutical Products listed on the SoSRx platform; the truth or accuracy of Manufacturers' content or listings; the ability of Manufacturers to sell Pharmaceutical Products; the ability of Buyers to pay for such Pharmaceutical Products; or that a Manufacturer or Buyer will actually complete a transaction. In addition, EH has given no guarantee that the Pharmaceutical Products have been approved by the Federal Government or any other agency overseeing manufacture or distribution of such Pharmaceutical Product. EH, is not responsible for any alleged damages arising from the use of the Pharmaceutical Product by third party consumers.

3. Definitions

“Buyer” refers to a party that intends to buy Pharmaceutical Products from Sellers.

“Lawful Transaction” refers to transactions that comply with the applicable federal and state laws, including the federal Food, Drug, and Cosmetic Act (Drug Supply Chain Security Act), Controlled Substances Act, and other federal and state laws, such as state laws requiring licensure of wholesale distributors.

“Manufacturer” refers to a party intending to sell Pharmaceutical Products to Buyers.

“Parties” refers to both Manufacturers and Buyers.

“Pharmaceutical Products” means any product marketed or distributed by the Manufacturer intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man established through in vitro, in vivo studies and/or clinical end point studies and other adequate scientific evidence.  

“Reserve Price” means the minimum price set by the Manufacturer that must be obtained in the bidding process for a Pharmaceutical Product to be sold to a Buyer.

 “Third party” refers to a party that is not owned by any of the Parties, and by EH.

“Transaction Value” means the sum of the entire monetary amount the Manufacturer charges the Buyer for sale of Pharmaceutical Products, including any shipping and handling, but does not include any applicable taxes. If the Buyer does not make the required payment in full, the Transaction Value shall be defined as the amount that the Buyer promised or owes the Manufacturer for the purchase of Pharmaceutical Products.

4. SoSRx Function

EH provides Services and the SoSRx platform for the Parties to conduct sales of Pharmaceutical Products.

1. Manufacturers will list the Pharmaceutical Products for sale exclusively on the SoSRx platform including minimum quantities for purchase, lot # and expiration dating for each Pharmaceutical Product. Manufacturer may also include a price they are willing to sell such Pharmaceutical Product which is known as “Buy Now” feature.
2. Manufacturer will select which Buyers they would like to participate in the bidding process (“Inclusion List”) and such Buyer shall receive notification through the SoSRx platform that a Pharmaceutical Product is available for purchase through the bidding process on the SoSRx platform.
3. Manufacturer agrees that while such Pharmaceutical Product is exclusively listed on the SoSRx platform it will not engage in or actively pursue for sale such Pharmaceutical Product.
4. Buyer will submit an initial bid price (and an option for maximum bid price utilizing an automated process) for a specific Pharmaceutical Product. 
5. If Buyer is awarded the Pharmaceutical Product based on providing the highest price for such Pharmaceutical Product or purchasing the Pharmaceutical Product through the “Buy Now” feature, the Buyer shall send either an actual Purchase Order or draft Purchase Order (if such sale shall be conducted through an Electronic Data Interchange (EDI)) to the SoSRx platform. EH will then submit the actual or draft Purchase Order, as the case may be, to the Manufacturer on behalf of the Buyer with terms and conditions including but limited to payment terms, ship to location of the Pharmaceutical Products, and other pertinent information. THE PURCHASE ORDER WILL ALSO SPECIFY THAT THE TRANSACTION FOR THE PHARMACEUTICAL PRODUCT IS NON-RETURNABLE and NON-REFUNDABLE.  
6. Manufacturer will ship the Pharmaceutical Products to Buyer’s location specified in the Purchase Order and will submit an invoice directly to the Buyer with a copy to the SoSRx platform. Manufacturer will be responsible for collecting payment for the Pharmaceutical Products sold to the Buyer. EH shall not be liable or responsible for the collection of payments and will not engage in any dispute that may arise from a transaction.
7. EH will always strive to provide you the best service it can and shall not be liable or responsible for any disruptions or breakdowns of SoSRx platform, or Services. EH has the right to cancel or suspend the sale process (prior to a transaction being completed) of a Pharmaceutical Product without penalty to the Manufacturer or to EH.
8. EH reserves the right to terminate any relationship, at any time, under its sole discretion.
1. In case an error has occurred or information is incorrectly displayed on the SoSRx platform including but not limited to incorrect quantities or price, the Manufacturer or EH reserves the right to revoke a transaction at any time without penalty to the Manufacturer or to EH.

5. Transaction Fees and Taxes

EH shall collect fees from Manufacturers based on a percentage of transaction.

6. Manufacturers Obligations and Conditions

• Manufacturer assumes full responsibility for the Pharmaceutical Product(s) offered. EH will not be accountable for any oversight and/or inaccuracy and content of the Pharmaceutical Product listings.
• The user(s) of the SoSRx platform, is/are authorized to act on behalf of the Manufacturer in order to sell Pharmaceutical Products.
• Before a Buyer is placed into Manufacturers’ “Inclusion List”, Manufacturer shall be responsible for conducting its own due diligence with regards to wholesale distributor licenses, EIN verification, credit reports, and civil and criminal history records from any criminal justice agency in any or all federal, state, county jurisdictions.
• Manufacturer must hold valid wholesale distribution or manufacturer licenses from individual states in which the Buyer is located as applicable. Manufacturers must conduct necessary due diligence to ensure the Pharmaceutical Products sold to Buyers comply with federal and state laws and regulations.
• Manufacturers shall not sell any Pharmaceutical Products that infringe any intellectual property, including patents, trademarks, and copyrights.
• In case of an error the Manufacturer or EH reserves the right to delete any Pharmaceutical Product for sale at any time without penalty to the Manufacturer or to EH.
• Manufacturer shall contact EH at the earliest if they receive any violation/suspension notice from any government authority which prohibits their ability to conduct business or sell a Pharmaceutical Product listed on the SoSRx platform.

7. Prohibited Acts

• The Manufacturer shall not engage in any transactions other than Lawful Transactions. Additionally, the Manufacturer agree they will not violate any written policies and guidance issued by EH whether before or after you agree to this User Agreement. The Manufacturer agrees that any written policies and written guidance are considered to be incorporated into this User Agreement, whether they are issued before or after you agree to this User Agreement.
• The Manufacturer shall not violate any federal or state laws and regulations when distributing Pharmaceutical Products through the SoSRx platform. By registering for and using EH Services, the Manufacturer represents that they and their Pharmaceutical Products comply with all applicable federal and state laws and regulations for Pharmaceutical Products.
• The Manufacturer shall not engage in, make offer to, or accept offer to divert any transactions to a domain or platform other than SoSRx. Such conduct shall result in immediate termination of the EH Services, and will subject any responsible Party to civil liabilities. In addition, all Pharmaceutical Product sold through the SoSRx platform is as stated Non-returnable, and the full intent is for the entire allocation of the Pharmaceutical Product to be sold through distributor/wholesalers retail end user.
• The Manufacturer shall not engage in any conduct that causes or has the potential to cause harm to EH, including but not limited to, its ongoing business, future business prospects, employees, or its reputation.
• The Manufacturer shall not disclose its SoSRx platform account information, including the log-in password, to any person or business that does not absolutely need the account information on a long-term daily basis to conduct its lawful business.

8. Changes to Terms of Service

EH reserves the right to modify this User Agreement at any time, by notifying through any contact information provided by the Parties.

9. Termination of Services

• EH reserves the right to suspend or cancel any transactions or any Services that it deems necessary and shall provide the Parties affected by its suspension or cancellation reasons for such suspension or cancellation. EH may unilaterally cancel the bidding process at any time without prior notice, and shall not be subject to any damages if such a cancellation occurs.
• EH reserves the right to refuse Services to any party.
• Termination of EH Services does not absolve or affect any obligations owed by the Manufacturer to EH prior to the termination.

10.  Governing Law & Disputes

The State of Michigan law shall govern all terms and conditions in this User Agreement. For any disputes between EH and the Manufacturer, the dispute shall be resolved through binding arbitration rather than litigation in court. The arbitration will be conducted by the American Arbitration Association (AAA) and it will be governed by the AAA’s applicable rules. The Manufacturer agrees to conduct all its dispute resolution proceedings on an individual basis, and not through a class action.

As specified in Section 4, EH is not a party to the transactions between the Parties. In any dispute between the Parties, Manufacturer shall release and hold harmless EH and its owners, agents, representatives and employees from any and all claims and demands for damages, including but not limited to all actual and consequential damages.

11.  Indemnification

Manufacturer agrees to indemnify, defend and hold harmless EH, including its agents and employees, from and for any disputes, claims, penalties, judgments, and costs resulting from your engagement in any of the Prohibited Acts described in Section 7 or any other violation of this User Agreement.

These terms and conditions will prevail unless a separate agreement is mutually accepted by both parties in writing.