Last updated: Nov 25, 2022

DELIVERY SERVICES AGREEMENT

 

PLEASE REVIEW THE TERMS OF THIS DELIVERY SERVICES AGREEMENT (THIS “AGREEMENT”) CAREFULLY AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER”) AND EBOXCHAIN, INC. (“EBOXCHAIN”) WITH RESPECT TO CUSTOMER’S ACCESS TO AND USE OF EBOXCHAIN’S HTTPS://EBOXCHAIN.COM (THE “WEBSITE”), EBOXCHAIN SERVICES (AS DEFINED BELOW), AND THE PLATFORM (AS DEFINED BELOW). BY ACCEPTING THIS AGREEMENT, REGISTERING AN ACCOUNT (AS DEFINED BELOW) AND ACCESSING THE WEBSITE, CUSTOMER AGREES TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN, AS WELL AS THE TERMS OF USE OF THE WEBSITE, AVAILABLE AT HTTPS://EBOXCHAIN.COM/TERMSANDCONDITIONS (THE “TERMS OF USE”). IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT OR THE TERMS OF USE, CUSTOMER WILL NOT BE ALLOWED TO ACCESS OR USE THE WEBSITE, EBOXCHAIN SERVICES, OR THE PLATFORM. IN ORDER TO ACCESS AND USE THE WEBSITE, EBOXCHAIN SERVICES, AND THE PLATFORM, CUSTOMER MUST BE AT LEAST EIGHTEEN (18) YEARS OLD.

 

By creating an Account and accessing the Platform, Customer desires to arrange for delivery of prescription pharmaceuticals (meaning those pharmaceuticals which require a doctor’s prescription and dispensing by a registered pharmacist, collectively “Products”) from Customer’s pharmacy locations listed on the Order Form (as defined below) to patrons of Customer (each, a “Patron”) at their homes, businesses, or other Patron designated locations. Eboxchain, through its proprietary system and network of contracted Couriers (as defined below) nationwide, facilitates the delivery of Products to Patrons (the “Eboxchain Services”).

 

In consideration of the mutual promises and the covenants hereinafter set forth, the parties hereby agree as follows:

1. ACCOUNT CREATION. In order to use the Eboxchain Services and the Platform, Customer must register an account with Eboxchain through the Website (an “Account”). Customer agrees (i) to provide accurate, current, and complete information when registering for an Account; (ii) it does not own or have any property interest in the Account; and (iii) to maintain the user names and/or passwords which enable Customer and/or its authorized users (each, an “Authorized User”) to access the Eboxchain Services and the Platform (the “Passwords”) in strict confidence and not to provide the Passwords to any third party. Customer agrees to notify Eboxchain promptly if there is a loss or compromise of any Passwords and Customer will be responsible solely for all actions, damages, liabilities, and losses incurred as a result of such loss or compromise. Until Eboxchain has actual notice of such loss or compromise or authorized use, Eboxchain will consider all Account activity to be authorized by Customer.
2. TERM AND FEES. The term of this Agreement shall begin on the date Customer registers for an Account (the “Effective Date”), and continue for the period specified (the “Service Period”) in executed order forms (each, an “Order Form”), provided, that, the anticipated launch date of your access to the Eboxchain Services is the date noted as “Estimated Launch Date” on such Order Form. The Service Period shall automatically renew for a new Service Period of the same duration, and subject to the same terms, unless either party notifies the other in writing at least thirty (30) days prior to the end of the Service Period of its cancellation of the Agreement, at which point the Agreement will terminate at the end of the Service Period. Notwithstanding the forgoing or anything else in this Agreement, Eboxchain may terminate this Agreement at any time upon written notice to Customer. Customer and Eboxchain’s service fees (and other charges, if any), shall be set forth in each Order Form. Invoices are due with net thirty (30) day terms upon receipt. Notwithstanding anything in this Agreement to the contrary, the fees and charges set forth in an Order Form will automatically increase every twelve (12) months by an amount equal to the greater of (x) three percent (3%) of the prior years’ fees or (y) the percentage rate increase in the consumer price index for all urban consumers over the immediately-preceding twelve (12)-month period. Customer is responsible for the payment of taxes in connection with this Agreement that are imposed by law on Customer as the buyer of the Eboxchain Services, which may include, but are not limited to, sales, use, excise, value-added, business, service, goods and services, consumption, and other similar taxes or duties. Eboxchain will be responsible for the payment of all taxes in connection with this Agreement that are imposed by law on Eboxchain as the seller or provider of the Eboxchain Services. Each party will be responsible for its own income taxes, gross receipts taxes, employment taxes, and property taxes. The parties will cooperate in good faith to minimize taxes to the extent legal permissible. To the extent Eboxchain is required to collect taxes for which Customer is responsible, Eboxchain will identify such taxes as separate line items on affected invoices. Each party will provide to the other party any resale exemption, multiple points of use certificates, treaty certification and other exemption information reasonably requested by the other party from time to time.
3. DELIVERY SERVICE OPTIONS. Delivery service options are available for request as set forth in each Order Form.
4. DELIVERY DETAILS.
   1. Customer shall prepare all Products for delivery in properly sealed and labeled containers and provide any instructions to Couriers necessary for Couriers to care for and maintain the integrity of the Products so they may ultimately be delivered to a Patron for safe use. Such instructions shall include requirements regarding the temperature at which the Products need to be maintained during transport and any other similar instructions.
   2. Customer will ensure that the Products are ready for delivery and readily accessible by Eboxchain’s Couriers at the applicable pick-up time associated with the requested Eboxchain Services. If Products are not ready for pick up upon the Eboxchain Courier’s arrival at the applicable Location at the pick-up time, Customer will be assessed a fee of $25.00.
   3. Eboxchain will provide delivery services on Monday through Friday (“Delivery Days”); delivery services will not be provided on federal holidays. Saturday and Sunday services can be added upon mutual agreement of Customer and Eboxchain and will be referenced in Exhibit A. Any Product that Eboxchain is unable to deliver for any reason shall be returned to the Location the same day it is picked up for delivery, provided, that, in the event of any such return, Customer will be charged a return-trip fee based on the mileage incurred to return the Product to the Location. Eboxchain will use its commercially reasonable efforts to respond within twenty-four (24)-hours via email or telephone to any Customer inquiries regarding Eboxchain’s services provided hereunder. Eboxchain shall at no time deliver any alcoholic beverage or tobacco product, and at no time does Eboxchain take title to Products.
   4. Customer understands that Eboxchain is a service for facilitating and monitoring delivery services, and that the delivery of Products will be performed by Eboxchain’s Couriers. Consistent with its obligations herein, Eboxchain reserves the right to select the specific Courier that will perform deliveries for Customer.
   5. Eboxchain shall ensure that all Couriers providing services on behalf of Eboxchain hereunder are licensed drivers with safe driving records and that they are not excluded from participation in federal healthcare programs.
5. PROOF OF DELIVERY; UNATTENDED DELIVERIES.
   1. Except as otherwise set forth in this Agreement, Eboxchain will obtain a signed proof of delivery to each Patron for each delivery that has “signature” option selected. Eboxchain shall securely store the signed proofs of delivery and make them available to Customer upon request; provided, however, that Customer shall notify Eboxchain within three (3) days of each complaint or inquiry from a Patron about a prescription the Patron expected to receive but claims was not delivered. Notwithstanding the foregoing, in an event (such as the COVID-19 outbreak) where Eboxchain deems, in its sole discretion, that it is unsafe to collect signatures as proof of delivery, then Eboxchain may implement, and Customer agrees to adhere to, an alternative signature policy for a limited time until Eboxchain, in its reasonable discretion, determines that it is safe to collect such signatures.
   2. Notwithstanding anything in this Agreement to the contrary, Customer acknowledges and agrees that Eboxchain, its employees, its affiliates, its courier companies and their individual couriers (collectively, the “Couriers”) may leave packages containing Products (including prescription medication) picked up from Locations for delivery to a Patron’s address, unattended at a Patron’s address, including in situations when the Patron or the Patron’s representative is not present or immediately available to take possession of the Products or during events (such as the COVID-19 outbreak) where Couriers may feel unsafe engaging directly with a Patron or a Patron’s representative, and in such instances, the Products may be left unattended at the Patron’s delivery location (an “Unattended Delivery”). In addition to any of its other indemnification obligations herein, Customer agrees to hold Eboxchain, its employees, officers and directors, and its Couriers harmless from any and all claims, liabilities, fines, penalties or demands of any kind whatsoever with respect to any Unattended Delivery, including, but not limited to, any prescription medication package(s) that a Patron does not ultimately receive after an Unattended Delivery (whether due to the prescription medication being lost, stolen, or otherwise misplaced), or any injuries or damages suffered by, or noncompliance of, Customer, the Patron, or any other party.
   3. Customer bears all risk of loss of Product in excess of $100.00 with respect to the services provided by Eboxchain or its couriers under this Agreement, and in no event shall Eboxchain or couriers be obligated to reimburse Customer for any lost Product in an amount in excess of $100.00. Notwithstanding the foregoing, (i) if Product is lost as a result of an error or omission of Customer or Customer’s agents or employees, Eboxchain shall not be required to reimburse Customer for any amount and Customer shall be charged a lost product administration fee of $35.00 and (ii) if Customer elects to use packaging other than Eboxchain’s standard packaging, then Eboxchain shall not be obligated to reimburse Customer for (and shall be held harmless as a result of) any missing or lost Product.
6. PLATFORM ACCESS. During the Service Period and in exchange for Customer’s payment of the Plan Fee listed in the Order Form, subject to Customer’s compliance with all other terms of this Agreement, Eboxchain will provide Customer a non-exclusive, non-transferable right to access and use Eboxchain’s proprietary software platform related to the Eboxchain Services provided herein (the “Platform”) and other services related thereto. The Platform provides Customer with access to the Eboxchain network of drivers, the ability to order delivery services described herein and status updates. By using the Platform, Customer agrees to be bound by the Platform Services Agreement available at HTTPS://EBOXCHAIN.COM/PLATFORMAGREEMENT. Use of the Platform shall be limited to Customer’s internal use. Customer acknowledges that the Platform comes “as-is” and will not be customized for Customer’s use. The subscription to use the Platform shall be terminated immediately upon the termination of this Agreement. Customer acknowledges that as between Customer and Eboxchain, Eboxchain owns all right, title and interest in and to all components of the Platform and all data contained therein.
7. HIPAA. The parties intend that this Agreement, including any Order Form, and any remuneration provided hereunder will comply with the Federal Anti-Kickback Statute (42 U.S.C. §1320a-7b(b)), the False Claims Act (31 U.S.C. 3729), the Beneficiary Inducement Statute (42 U.S.C. 1320a-7(a)), and the privacy and security provisions of the Health Insurance Portability and Accountability Act of 1996 as amended by the Health Information Technology for Economic and Clinical Health Act and the regulations promulgated thereunder (collectively, “HIPAA”), as amended from time to time. To the extent required by HIPAA, the parties agree to execute a Business Associate Agreement, as defined under HIPAA. Customer agrees not to provide Eboxchain’s Couriers with any protected health information. In furtherance of the foregoing, Customer’s pharmacy agrees that Eboxchain’s Couriers will not have access to protected health information and may come into contact with materials containing protected health information only on a transient basis, and as such, they will operate under the conduit exception under HIPAA.
8. TERMINATION FOR FRAUD, ABUSE, OR NONPAYMENT. Eboxchain reserves the right to terminate this Agreement immediately if, in its sole discretion, it determines that Customer is utilizing Eboxchain’s delivery services in the furtherance of fraud upon or waste or abuse of resources of commercial payers, government payers, or Eboxchain, or in connection with other activity violative of law, including, but not limited to, the delivery of controlled or illegal products. Eboxchain reserves the right to terminate this Agreement immediately if Customer becomes more than seven (7) days past due for payment of any invoices.
9. ASSIGNMENT. Neither party shall assign its rights nor delegate any of its obligations hereunder, without the prior written consent of the other party, such consent which shall not be unreasonably withheld, provided, that Eboxchain may, without Customer’s consent, assign this Agreement in whole to an entity that acquires all or substantially all of the business or assets of Eboxchain. Notwithstanding the foregoing, Customer agrees that Eboxchain regularly uses Couriers for its delivery services and the use of such Couriers shall not require Customer’s prior written consent.
10. WARRANTIES. Customer warrants that: (i) it will comply with all applicable state or federal laws, regulations, and/or rules of state boards of pharmacy regarding the delivery of Products to Patrons; (ii) it has all required licenses to provide prescription drugs; (iii) it is in good standing with the applicable state boards of pharmacy and, to the extent Customer is an entity, the secretary of state in the states in which Customer operates; and (iv) it has obtained rights, permission and legally-adequate consent from Patrons as necessary to provide Eboxchain and its Couriers with Patron information in connection with the delivery services.
11. INDEMNIFICATION. Eboxchain will indemnify, defend, and hold Customer and its employees harmless from and against any and all loss, damage, liability, and claims (including, without limitation, cost and expenses of litigation and reasonable attorneys’ fees) (collectively “Claims”) arising from, or connected with, a third party claim or third party action and Eboxchain’s breach of this Agreement, except to the extent such Claims are due to any act or omission or Customer, Customer’s employees or agents, or a common carrier. Customer will indemnify, defend, and hold harmless Eboxchain and its employees from and against any and all Claims arising from, or connected with, Customer’s or an Authorized User’s breach of this Agreement, Customer’s or an Authorized User’s failure to comply with any law, regulation, and/or rule of board of pharmacy pertaining to the dispensing or delivery of Products, Customer’s failure to remain in good standing with the applicable state boards of pharmacy and, to the extent Customer is an entity, the secretary of state in the states in which Customer operates, or any act or omission of Customer or any of Customer’s employees, agents, or Authorized Users.
12. DISCLAIMER; LIMITATION OF LIABILITY.

    1. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EBOXCHAIN AND ITS AFFILIATES PROVIDE THE EBOXCHAIN SERVICE ON AN “AS IS,” “WHERE IS,” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW. EXCEPT AS OTHERWISE AGREED IN THIS AGREEMENT, THERE ARE NO OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT AND ANY WARRANTIES ARISING FROM THE COURSE OF DEALING OR PERFORMANCE. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EBOXCHAIN AND ITS AFFILIATES DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES. EBOXCHAIN AND ITS AFFILIATES DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN SUCH EBOXCHAIN SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE EBOXCHAIN SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EBOXCHAIN SERVICE IS A SERVICE THAT ENABLES ACCESS TO REQUEST GROUND TRANSPORTATION AND DELIVERY SERVICES PROVIDED BY INDEPENDENT THIRD-PARTY COURIERS. EBOXCHAIN AND ITS AFFILIATES ARE NOT TRANSPORTATION OR LOGISTICS PROVIDERS. EBOXCHAIN AND ITS AFFILIATES DO NOT GUARANTEE AVAILABILITY OF TRANSPORTATION OR LOGISTICS SERVICES, ON-TIME ARRIVALS OR DEPARTURES THEREOF, OR ANY OTHER SERVICE LEVELS RELATED TO INDEPENDENT TRANSPORTATION OR LOGISTICS PROVIDERS THAT MAY BE OBTAINED VIA THE EBOXCHAIN SERVICE.

        

       CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THE WEBSITE AND THE PLATFORM RELIES UPON THIRD PARTY SOFTWARE AND HARDWARE FOR CERTAIN FUNCTIONS AND EBOXCHAIN MAKES NO REPRESENTATION, WARRANTY, PROMISE OR GUARANTEE TO CUSTOMER THAT SUCH SOFTWARE OR HARDWARE WILL BE ERROR FREE, ACCOMPLISH A SPECIFIED PURPOSE, OR PERFORM IN ACCORDANCE WITH ANY PARTICULAR STANDARD, LEVEL OR METRIC, AND EBOXCHAIN WILL NOT BE LIABLE TO CUSTOMER FOR ANY FAILURE THEREOF.

        

       CUSTOMER ACKNOWLEDGES EBOXCHAIN DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE NETWORK MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ACCORDINGLY, EBOXCHAIN WILL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

    2. LIMITATION OF LIABILITY. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EBOXCHAIN OR CUSTOMER BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, LOST PROFITS, REMOTE, COVER, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF BUSINESS, DATA, SAVINGS, OR PROFITS, SUFFERED BY THE OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF EBOXCHAIN OR CUSTOMER (OR THEIR AGENTS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EBOXCHAIN BE LIABLE UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES IN AN AMOUNT EXCEEDING THE TOTAL FEES PAYABLE BY CUSTOMER TO EBOXCHAIN HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT THAT GAVE RISE TO THE LIABILITY.
13. NOTICES. Any notice required or given to Customer under this Agreement shall be delivered by electronic mail to the email address provided in connection with Customer’s Account.
14. OWNERSHIP. Eboxchain and its affiliates are and shall remain the owners of all right, title and interest in and to the Platform that enables Customer to request delivery services by independent third-party couriers including any updates, enhancements and new versions thereof, all data related to the use of such technology service, and all related documentation and materials provided or made available to Customer or any proposed Patron or Patron in connection with this Agreement.
15. FORCE MAJEURE. Neither Customer nor Eboxchain will be liable for delays in performing their respective obligations, except for any payment obligations under this Agreement, to the extent such delay is caused by any unforeseeable conditions which are beyond the reasonable control of the Parties, including the following: storms, floods, acts of God, acts of civil or military authorities, labor disputes, fires, epidemics (including Coronavirus or COVID-19, whether foreseeable or unforeseeable), wars, or riots (“Force Majeure Events”). If any Force Majeure Events exist, Customer or Eboxchain, as the case may be, shall be responsible for notifying the other Party of the cause and extent of any such condition. In the event a delay of one Party’s obligations under this paragraph extends beyond fifteen (15) days, the other Party may terminate this Agreement upon notice without penalty to the terminating Party.
16. GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the State of North Carolina. All actions or proceedings between the parties that arise out of, or have to do with, this Agreement shall be brought in the state or federal courts located in Wake County, North Carolina, and each party consents to the jurisdiction of either of those courts over them as to such actions or proceedings and waives any objection it may have now or in the future that either of those courts is an inconvenient forum for such actions or proceedings.
17. ENTIRE AGREEMENT. This Agreement, including all Exhibits, Order Forms, addenda referencing this Agreement, or links to terms, conditions or other agreements described herein, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all existing agreements between Eboxchain and Customer and any of Customer’s affiliates and wholly-owned subsidiaries in existence as of the date hereof. This Agreement may be unilaterally amended by Eboxchain.
18. CONSENT TO USE OF ELECTRONIC SIGNATURES AND RECORDS. As a convenience and courtesy to Customer, Eboxchain provides access to the Website and the Platform online which may require Customer to enter into agreements or receive notices electronically. Accordingly, Customer acknowledges and agrees that by clicking “I Agree” or “I Accept” anywhere on the Website or the Platform or by otherwise agreeing to the terms and conditions set forth in any agreement posted on the Website or the Platform: (i) Customer agrees to conduct electronically the particular transaction into which Customer thereby enters including, without limitation, entering into this Agreement or any Order Form; (ii) Customer read and understands the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, any Order Form, the Terms of Use and any amendments hereto or thereto; (iii) Customer agrees to, and intends to be bound by, the terms of the particular transaction into which Customer thereby enters; (iv) Customer is capable of printing or storing a copy of electronic records of transactions into which Customer enters including, without limitation, this Agreement or any Order Form and any amendments hereto or thereto; and (v) Customer agrees to receive electronically information about the Website, the Platform, and the Eboxchain Services, and other electronic records into which Customer thereby enters including, without limitation, this Agreement or any Order Form. If Customer wishes to withdraw this consent, please contact Eboxchain at support@eboxchain.com, in which case Eboxchain shall have the right to terminate Customer’s Account and use of the Platform.
19. PROFESSIONAL SERVICES. From time to time, Eboxchain may provide professional services to Customer. In case of each such provision, the parties will enter into and execute an Order Form that references this Agreement and that sets forth the scope of those services, the compensation therefor, and such other terms and conditions as the parties determine. Except to the extent expressly set forth in such Order Form, such Order Form is subject to, and governed by this Agreement.