1. Introduction. Welcome to Trxade’s online buying and selling marketplace for licensed sellers and suppliers (“Pharmaceutical Wholesalers”) of FDA-approved, non-DEA controlled “Prescription Drugs” to sell products and services to dully licensed “Pharmaceutical Buyers.” This Agreement applies to the solicitation, use, and sale of products and services through trxade.com (the “Site”) (collectively, the “Services”). This Agreement shall supersede and replace any terms and conditions of the Site unless expressly agreed to herein. In the event of any conflict of terms between this Agreement and any other terms and conditions related to the Site or the Services, the terms of this Agreement shall govern.
2. Trxade Services
2.1 Service Provider. The Services allow Pharmaceutical Buyers (“Buyers”) to find Prescription Drugs and other products to purchase from licensed Wholesalers and Manufacturers (“Sellers”) who desire to sell/transfer their Prescription Drugs and products. It is the seller’s responsibility to ensure all facilities involved in each transaction are properly licensed including shipping from and to state licenses of all parties involved in transactions that require licensure.
2.2 Service Provider Licensed States. Trxade requires Sellers to inform Trxade Customer Service when licensed in a new state to activate the state and expand their product offering. It is also the sole responsibility of a seller to inform the customer service team when they are no longer operating in a state that requires licensure. Sellers are not allowed to list, sell, or ship in unlicensed states products that require licensure.
3. Registration Terms and Conditions
3.1 Requirements. The parties acknowledge and agree that the terms and conditions contained in this Agreement shall govern the Supplier’s use of the Site. Supplier shall provide Trxade with its State Wholesaler License and complete Trxade’s standard application under the terms and conditions of this Agreement.
3.2 Username and Password. The supplier will be required to create a username and password to the Site to access the Services. The supplier shall be responsible for maintaining the confidentiality of its password. Supplier may not use the account, username, or password of someone else at any time. Supplier agrees to notify Trxade immediately of any unauthorized use of Supplier’s account, username, or password. Trxade shall not be liable for any loss that the Supplier may incur because of someone else using the Supplier’s password, either with or without the Supplier’s knowledge, to the extent such unauthorized access did not result from the fault or negligence of Trxade.
4. Posting Prescription Drugs and other Products
4.1 Pricing. The supplier shall assign a price to the Prescription Drugs and provide information such as the name, size, pack size, pack quantity, and price. Suppliers may modify any field of a posting by accessing the Suppliers Manage Listings. A supplier who posts a product for sale on the Site must sell such a product at a reasonable price. Trxade reserves the right to remove listings at any time, if Trxade deems pricing is not competitive in the marketplace, provided Trxade has provided the Supplier with reasonable advanced written notice to allow the Supplier the opportunity to dispute any such claims.
4.2 Product Listing Accuracy. It is the Supplier’s responsibility to ensure that all Supplier’s products listed on the Site are in stock and immediately available for shipment at the time of catalog transmission and must be complete and accurate in their descriptions. Orders submitted by buyers to the Supplier must be honored at the price that is listed at the time the order is submitted. Increasing a price after an order is submitted, unaccepting an order due to a price increase, shipping an alternate NDC/SKU/Manufacturer post-sale, listing products that are not in stock (backorder), or posting products to source post-sale are causes for termination from Site participation.
4.3 Supplier Responsibility. Once a Buyer makes a purchase of Prescription Drugs or other products from a Supplier, the Supplier is responsible for fulfilling the order with the exact Products that the Supplier posted. Trxade is not responsible for any errors or omissions made by the Supplier in the posting or pricing of Products and Trxade is not liable for any such errors or omissions, except to the extent such errors or omissions result from the negligence of Trxade.
4.4 Transaction Requirements. Both parties shall comply with both federal, and individual state, laws, rules, and regulations while performing the Services. Both parties agree to indemnify and hold the other party and (if applicable) any parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless against any claim or demand and all liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by the other party and (if applicable) any parents, subsidiaries, affiliates, officers, directors, agents, and employees that arise out of any claim asserted by a third party or government agency that involves, relates to or concerns any of a party’s actions or omissions of this Agreement and/or on the Site, including but not limited to a breach or violation of any law.
4.5 Pedigree Requirements. Upon request of the Buyer, the Supplier shall provide the pedigree of the requested item to the Buyer pursuant to the Supplier’s internal policies.
5. Finding Prescription Drugs and placing orders.
5.1 Placing an Order. The Buyer shall place an order directly with a Supplier via the Site, ensure its accuracy, and understand orders placed with suppliers via Trxade.com have a no-returns policy. Some suppliers have an individual returns policy, please review each supplier’s Return Policy before placing an order. The supplier shall promptly review and accept the order. Supplier shall be responsible for managing its products and confirming orders upon receipt during normal business hours and shipping products per the method selected by the Buyer. Acceptance of an order by a Supplier deems a sale of the product and the transaction becomes billable upon the date on which the transaction occurred.
5.2 Supplier Information. Trxade does not guarantee any information provided by the Supplier in the Prescription Drug postings process.
5.3 Substituted Prescription Drugs. Actual posted Prescription Drugs and amounts must be provided to the Buyer without variation. Trxade reserves the right to terminate a transaction if it deems the Prescription Drugs to be counterfeit or sample items, provided, however, Trxade must communicate with the Supplier beforehand to allow the Supplier to reject such termination.
6. Completing the Sale.
6.1 Confirming the Order. Once the Supplier confirms the order, it is the Supplier’s sole responsibility that the product is shipped for the fulfillment of the transaction. The acceptance, fulfillment, shipment, and sale of all products, goods, or services because of any transaction presented through the Site is solely the responsibility of the Supplier. Trxade as well as all its affiliates and/or related companies are not responsible to perform any due diligence of the Buyers or Suppliers, including but not limited to the following: regulatory, compliance, pedigree verification, proper licensing, or financial or creditworthiness on any Buyer or Supplier. All parties hereby agree that the Company shall be completely indemnified and held harmless by all parties regarding such liabilities or damages resulting from any said transactions herein unless such liabilities or damages arise from the fault or negligence of Trxade.
6.2 Fill Rates. To maintain Buyer confidence in the availability and pricing of products posted on our site, Trxade requests that all Suppliers maintain a 97% or higher-order fulfillment ratio (fill rate). Continually not meeting the minimum fill rate is cause for suspension or termination from site participation.
6.3 Shipment of Prescription Drugs and Other Products. All Prescription Drugs and other products are shipped via the terms established by the Supplier and posted on the Site. If the Supplier is shipping a frozen or refrigerated Prescription Drug(s), the responsibility of the proper shipping method is the responsibility of the Supplier. Frozen/Refrigerated items must be shipped Monday – Thursday via Overnight shipping.
6.4 Dispute Resolution. In the event of a dispute between the Supplier and a Buyer, the Supplier shall notify Trxade, if necessary, of such dispute via one of the following methods: By email, contact customer service at customerservice @trxade.com or call toll free, 800-805-8705 or by Fax at 800- 265-6932.
7. Trxade Billing and Payment
7.1 Transaction Fees. The supplier will be assessed certain fees under the terms and conditions as specified in the Supplier’s initial registration and in a separate fee agreement (the “Supplier Fee Agreement”). The Supplier Fee Agreement is incorporated into this Agreement and together contains a complete statement of all arrangements between Trxade and the Supplier relating to all terms, conditions, and fees applicable to the Site and the services provided in connection with the Site.
8. Supplier Relationship with Trxade
8.1 Grant of Rights. Supplier agrees that Trxade provides an important service where Pharmaceutical Buyers can purchase prescription pharmaceuticals and other products from wholesalers. It is the Suppliers’ responsibility to comply with the respective state statutes of the jurisdictions in which it sells products listed at Trxade.
8.2 Release. Trxade acts as a marketplace only to allow Buyers and Suppliers to interact regarding Prescription Drugs and other products and services. In all cases, the submission and confirmation of orders are transactions between Buyers and Suppliers only. The fulfillment of confirmed orders, including delivery and shipment, is the responsibility of the Supplier.
9. Prohibited Actions
9.1 Offline Transactions. Supplier agrees not to use the Trxade website to knowingly (a) contact other Trxade users, (b) invite contact with other Trxade users, (c) solicit sales outside of Trxade to customers initiated by Trxade. The supplier also agrees that it will not knowingly contract with other Trxade users, directly or indirectly, for Prescription Drugs or other products offered on the Site while a Supplier is a registered user with Trxade and during a 12-month period after terminating the Supplier’s status as a registered user. Trxade is not responsible for any damages or lost profits that result from Trxade users directly contacting other Trxade users or for any damages or lost profits resulting from transactions conducted outside of Trxade, including transactions that originate at Trxade and are taken offline. As a Supplier, the Supplier agrees not to place any personal information on the site which would circumvent an established Trxade relationship. For the purposes of clarity, in the event Buyer contacts, purchases, or otherwise does business directly with Supplier while Supplier is a registered user and for a period of twelve (12) months thereafter, and Supplier is not aware or made aware of Buyer’s registration with Trxade, such relationship shall not constitute a breach of this Agreement and Supplier shall not be liable for any costs, fees, or damages to Trxade. Trxade agrees and acknowledges that in such an event, Trxade shall look to Buyer for any liabilities and/or damages.
9.2 Abusive Behavior. The parties agree not to use abusive language or behave in an abusive manner to any employee or customer of the other party.
9.3 The Sale of Narcotic Prescription Drugs. Supplier agrees not to post, sell/transfer any scheduled Prescription Drugs on the Site unless permitted by applicable state law and with the prior permission of Trxade.
9.4 Stolen Property and Sample Prescription Drugs. The sale of stolen property or sample Prescription Drugs on Trxade is strictly forbidden and violates state, federal and international law. Trxade strongly supports law enforcement efforts to recover stolen property or sample Prescription Drugs that are posted on the Site and urges the prosecution of those responsible for knowingly attempting to sell/transfer such items on Trxade’s exchange. Stolen property or sample Prescription Drugs include items taken from private individuals, as well as property taken without authorization from companies or governments.
9.5 Promotional Materials. The Buyer name and address information is provided to Suppliers for the sole purpose of shipping the specific purchased products and may not be used by the Supplier for any other purpose, either in connection with such shipment(s) or separately from such shipment(s). The Supplier agrees not to include in the Buyer’s shipment to the Buyer any promotional or other commercial material that is not provided or approved by Trxade. This includes, without limitation, material that announces a website or invites the Buyer to visit a website other than Trxade, catalogs, business cards, business reply to cards, bookmarks, coupons, flyers, solicitations, or other marketing or advertising material.
9.6 Unlicensed Entities. It is prohibited to ship a product “From” or “To” an unlicensed facility that requires state or federal licensure to complete such a transaction. It is the sole responsibility of the seller and the buyer to validate the required compliance on each transaction communicated by Trxade and the sole responsibility of the seller to perform compliance checks, validate, process, and ship such transactions. If a transaction is not compliant, the order can be placed on Hold until necessary documentation is acquired. The order may be “Unaccepted” at any time by the seller, or “Buyer Cancel” by the buyer at any point before the order is processed and shipped by making the request on the user portal, calling, or emailing our customer service team.
10.1 Investigations. Trxade may investigate complaints and violations of any policies. Supplier agrees to reasonably cooperate with such investigations, including without limitation, providing Trxade with specific information regarding Supplier’s right to a Prescription Drug, the source of a Prescription Drug, and the acquisition of a Prescription Drug.
10.2 Violations, Termination, and Suspension. Trxade may take any action that Trxade deems appropriate, in Trxade’s sole discretion (including without limitation issuing a warning, suspending or terminating service, denying access, removing a posting, or recommending Supplier edit a posting or taking legal action) if: (a) Supplier breaches this Agreement or any document it incorporates by reference; (b) Supplier is unwilling to cooperate with Trxade’s investigation of a complaint or reported violation, or (c) Trxade is unable to verify or authenticate any information Supplier provides.
10.3 Disclosure of Information. Supplier agrees that Trxade may report any activity that is suspected to violate any law or regulation to appropriate law enforcement officials, regulators, or other relevant third parties. Trxade will cooperate so that violators are prosecuted under the law.
11. User Representations and Warranties
11.1 Accurate Descriptions. For all Prescription Drugs and other products posted by the Supplier, the Supplier warrants that the descriptions of the Prescription Drugs and other products accurately detail and describe the products offered for sale. If the Supplier, at any time, delivers invalid, fraudulent, or misrepresented products, Trxade reserves the right to cancel the order and hold the Supplier liable for all charges or damages incurred to satisfy the Buyer. These charges may include but are not limited to, the cost of shipping or processing and administrative fees and refunds to the Buyer.
11.2 Other Information. Supplier represents and warrants that any information provided to Trxade and to Buyers (a) is not false, inaccurate, misleading, obscene, or defamatory; (b) is not fraudulent; (c) does not involve the sale of a counterfeit, sample, or stolen items; and (e) does not violate any law, statute, ordinance or regulation, including without limitation those governing consumer protection, unfair competition, anti-discrimination or false advertising and, (f) does not knowingly contain any viruses or any programming that is intended to damage, interfere with, intercept or expropriate any system, data or personal information, for further clarity, Supplier does not represent nor warrant that any information submitted by Supplier on the Site will not contain any viruses or any programming that is intended to damage, interfere with, intercept or expropriate any system, data or personal information.
11.3 Laws and Regulations. Supplier warrants that it will comply with all applicable local, state, federal, and international laws, statutes, rules, and regulations, including the federal anti-kickback statute under 42 U.S.C. Â§ 1320a-7b, and any applicable price reporting or other reporting obligations under state or federal laws, statutes, rules, and regulations, regarding use of the Site. Supplier represents that they are properly licensed to sell the products in the state they ship from, and all states they ship to, and that Supplier’s use of the Site is in full compliance with all applicable laws and regulations. The prices available to Buyers from Suppliers through the Site may represent a discounted price. Supplier agrees that they will comply with any requirements to report or disclose such discounts to third-party payors, including federal and state healthcare programs, as may be required by law.
11.4 Indemnity. Both parties agree to indemnify and hold the other party and (if applicable) any parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless against any claim or demand and all liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by the other party and (if applicable) any parents, subsidiaries, affiliates, officers, directors, agents, and employees that arise out of any claim asserted by a third party that involves, relates to or concerns any actions or omissions on the Site, including but not limited to the breach of this Agreement, or a violation of any law.
12. Disclaimers of Warranties and Limitations of Liability.
12.1 No Warranty. Except for the express warranties stated in this Agreement, Trxade provides the Services on an “as is” basis and an “as available” basis without any warranties of any kind. To the extent permissible by law, Trxade makes no warranty with respect to its software, or other products, the services Trxade provides, or that Suppliers or Buyers will perform as promised, and Trxade expressly disclaims all such warranties, whether express, statutory, or implied, including without limitation any warranties of merchantability, title, or fitness for a particular purpose. TRXADE DOES NOT WARRANT THAT THE SITE OR THE SERVICE WILL MEET THE SUPPLIER’S REQUIREMENTS OR THAT THE OPERATION OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
12.2 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR REVENUE OF THE OTHER PARTY, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. This limitation shall apply regardless of whether the damages arise out of a breach of contract, tort, or any other legal theory or form of action.
12.3 Change or Suspension of Site. Trxade reserves the right at any time to modify or discontinue, temporarily or permanently, the Site or any part of the Site with or without notice. Supplier agrees that Trxade shall not be liable for any modification, suspension, or discontinuance of the Site or any Services under this Agreement, for any reason. Trxade does not guarantee continuous, uninterrupted, or secure access to our service, and the operation of the Site may be interfered with by numerous factors outside of Trxade’s control.
12.4 Affiliated Sites. Trxade has no control over, and no liability for any third-party websites or materials. Trxade collaborates with several partners and affiliates whose Internet sites may be linked with the Site. Because neither Trxade nor the Site has control over the content and performance of these partner and affiliate sites, Trxade makes no guarantees about the accuracy, currency, content, or quality of the information provided by such sites, and Trxade assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites.
12.5 Tax Indemnity. Both parties agree that neither party is responsible in any way for the accuracy or suitability of any payment of any taxes to any entity on the other party’s behalf. Each party shall indemnify and hold the other party and (if applicable) any parents, subsidiaries, affiliates, officers, directors, agents, and employees harmless against all liabilities, costs, interest, and expenses (including reasonable attorneys’ fees) incurred by the non-indemnifying party that arise out of any third party or governmental claim that involves, relates to or concerns (i) any federal, state or county tax obligation or amounts due or owing under any tax regulation, law, order or decree or (ii) any dispute concerning the tax status of the other party.
12.6 Regular Maintenance. The Site could be unavailable from 12 am to 3 am Eastern Standard Time each morning while it is being updated and modified. When a Supplier posts Prescription Drugs for sale on the Site, the posting may not be available for purchase until the next regularly scheduled site update. Trxade is not responsible for unsold Prescription Drugs resulting from these regular Site updates.
13. Ownership and the intellectual property rights to Site, Data, and Service.
13.1 Ownership of Intellectual Property. Supplier acknowledges and agrees that Trxade’s (i) patents, trademarks, trade names, service marks, copyrights, and other intellectual property (collectively, “Intellectual Property”) are and shall remain the sole property of Trxade, and (ii) nothing in this Agreement shall confer any right of ownership or license rights in the Intellectual Property to Supplier unless explicitly stated. In addition, the Supplier agrees that it shall not now or in the future contest the validity of the Intellectual Property. Trxade has the right to compile data on the Trxade exchange to be utilized to benefit the members and/or Trxade. Notwithstanding the foregoing, any patents, trademarks, trade names, service marks, copyrights, and other intellectual property of Supplier shall not constitute to be the Intellectual Property of Trxade, and all such rights, title, and ownership shall remain with Supplier. For the purposes of clarity, in no event shall any upload by the Supplier constitutes a transfer of ownership to Trxade and shall remain the property of the Supplier.
13.2 Proprietary Processes. This Site allows users to invoke and benefit from processes that are proprietary to Trxade. The functions of the Site constitute the confidential trade secrets of Trxade. By availing of the benefits of the proprietary processes enabled by the Site, the Supplier agrees not to reverse engineer, misappropriate, independently create, disclose, or otherwise make use of the trade secrets embodied in the Site.
13.3 User Content. Supplier grants Trxade a limited, non-exclusive, license to use the materials (including but not limited to data and pricing information) Supplier posts to the Site or Service. By posting, downloading, displaying, performing, transmitting, or otherwise distributing information or other content (“User Content”) to the Site or Service, Supplier grants Trxade a license to use User Content solely in connection with the operation of the Services, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat User Content. The Supplier agrees that Trxade may publish or otherwise disclose Supplier’s name in connection with Supplier’s User Content solely in relation to the Services. By posting User Content on the Site or Service, the Supplier warrants and represents that it owns or has rights to the User Content.
13.4 Copyright Infringement. Trxade has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site or with the Service. Trxade has adopted a policy that provides for the immediate suspension and/or termination of any Site or Service user who is found to have infringed on the rights of Trxade or of a third party or otherwise violated any intellectual property laws or regulations. Trxade’s policy is to investigate any allegations of copyright infringement brought to its attention. If Supplies has evidence, knows, or has a good faith belief that it’s rights or the rights of a third party have been violated and desires Trxade to delete, edit, or disable the material in question, Supplier must provide Trxade with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Trxade to locate the material; (d) information reasonably sufficient to permit Trxade to contact Supplier, such as an address, telephone number, and if available, an electronic mail address at which Supplier may be contacted; (e) a statement that Supplier has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that Supplier is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, the Supplier must provide it to Trxade’s designated agent at:
Operations Team Trxade Health, Inc.
2420 Brunello Trace Lutz, Florida 33558
13.5 Prohibited Uses.Â The company imposes certain restrictions on the permissible use of the Site and the Service. Users are prohibited from violating or attempting to violate any security features of the Site or Service, including, without limitation,
(a) accessing content or data not intended for the user, or logging onto a server or account that is not authorized to access;
(b) attempting to probe, scan, or assess the vulnerability of the Service, the Site, or any associated system or network, or to breach security or authentication measures without proper authorization;
(c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site or Service, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;”
(d) using the Site or Service to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services;
(e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; or
(f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Trxade in providing the Site or Service. Any violation of system or network security may subject the Supplier to civil and/or criminal liability.
14. Additional Terms
14.1 No Agency Relationship. Supplier and Trxade are independent contractors, and no agency, partnership, joint venture, employer-employee, or franchisor-franchisee relationship is intended or created by this Agreement.
14.2 No License. Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by Trxade or by any third party.
14.3 Notices. Except as expressly stated otherwise, all notices to Trxade shall be sent to the email address provided at operations @trxade.com. Trxade’s street address is 2420 Brunello Trace, Lutz, Florida 33558.
14.4 Governing Law; Arbitration. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, U.S.A., without regard to its provisions governing conflicts of law. The parties hereto submit agree that any dispute or controversy between the parties arising under or concerning performance or breach of this Agreement shall be settled by one arbitrator in binding arbitration, to be held in Delaware, under the then-current rules of the American Arbitration Association.
14.5 Miscellaneous. This Agreement (and all documents incorporated by reference) constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings between the parties hereto with respect to the subject matter hereof, whether written or oral. No amendment, modification, or supplement of any provision of this Agreement will be valid or effective unless agreed to in writing by both parties.
If any provision of this Agreement is held to be invalid or unenforceable under any circumstances, its application in any other circumstances and the remaining provisions of this Agreement shall not be affected. Neither party may assign nor transfer this Agreement, or any of its rights or obligations, without the prior written consent of the other party. Nothing in this Agreement is intended to confer benefits, rights, or remedies unto any person or entity other than the parties hereto and their successors and permitted assigns. The subject heading at the beginning of each paragraph of this Agreement is for reference purposes only and in no way defines, limits construes or describes the scope or extent of such paragraph.
IN WITNESS HEREOF, the parties hereto hereby enter into this Agreement as of the Effective Date, regardless of the date signed by its representatives.
Authorized Trxade Representative:
Chief Operations Officer
Trxade Health, Inc.