STAT KIT® Emergency Medication Management Agreement
This STAT KIT® Emergency Medication Management Agreement (“Agreement”) between Banyan, a HF Acquisition Company, LLC. and the customer listed above (“you” or “Customer”), including the attached Terms and Conditions (and, to the extent you use the OnTraq™ Software, the OnTraq™ Software Terms and Conditions referenced below) (together, this “Agreement”) includes (i) the number of STAT KIT(s) which you are ordering from Banyan, (ii) your membership in the Program (as defined below) under this Agreement with respect to such ordered STAT KITS, as well as other terms and conditions of your membership.
The Program includes (i) the supply of the ordered STAT KITS(s) and (ii) replenishment of medications contained in such STAT KIT(s) (“Medications”) which during the Term of this Agreement have expired; and (ii) the replacement of any Medications in STAT KITS which during the Term are used for no more than two (2) emergency events (“Emergency Events”) per year (collectively, the “Program”). Additional Medications used during and replaced after Emergency Events replacements will not be a part of the Program and will be billed at then applicable retail prices. Your membership in the Program does not include ownership of the STAT KIT containers or boxes in which the Medications are stored (“STAT KIT Containers”) which are being loaned to you as part of the Program, and you agree that (i) you will not order or purchase any Medications or similar medications from any third party for use in or with the STAT KIT Containers, and (ii) you will return the empty STAT KIT Containers to Banyan within 30 days after any expiration or termination of this Agreement.
Included in your membership in the Program is access to OnTraq™, Banyan’s online dashboard that displays the status of the Customer STAT KIT Medications and pending shipments. To create your OnTraq™ account, log on to ontraq.statkit.com, and complete the sign-up process, by accepting the terms and conditions of the OnTraq™ SaaS Agreement (“OnTraq™ Terms and Conditions”). Complete instructions will be sent with your welcome kit as well as with your first shipment of Medications.
By signing this Agreement, you hereby agree to enroll in the Program based on the terms and conditions set forth in this Agreement. Once we receive (i) a signed copy of this Agreement with all applicable information filled out, (ii) your completed license and shipping address information, Banyan will ship your selected STAT KIT model(s) to you. This is to ensure that Banyan can accurately track the Medications and expiration dates for replenishment or replacement, including in the event of any Medication recall.
If there is an ongoing manufacturer back order on any Medications ordered by you, these may not be sent with your applicable shipment. If at any time Medications managed under this Program are unavailable, whether due to manufacturer back orders, shortages or any other reason, Banyan may supply an equivalent medication type which may be from an alternate manufacturer or in an alternate form factor (e.g.: one 10mL vial may be substituted for two 5mL vials). All such substitutions will be the equivalent medication formulation, volume, strength and dose.
These Terms and Conditions and the OnTraq™ Terms and Conditions (to the extent applicable (together, the “Terms and Conditions”) are incorporated into and made a part of the Agreement (“Form Agreement”) to which these Terms and Conditions are attached (the Form Agreement and these Terms and Conditions collectively referred to as the “Agreement”), which Agreement is effective as of the date set forth on the Form Agreement (the “Effective Date”) and is between the customer identified on the Form (“Customer”) and Banyan, Inc. (“Banyan”) (each, a “Party” and together, the “Parties”). Capitalized terms not otherwise defined in these Terms and Conditions shall have the meaning set forth in the Form Agreement. The Parties agree as follows:
- Subscription. Customer hereby enrolls in and subscribes to the STAT KIT Emergency Medication Management Program described in the Agreement (“Program”) with respect to the STAT KITs ordered and listed in Form Agreement (by model descriptions identified in the Form Agreement) and the Medications contained therein (collectively, the “Products”).
- Term and Termination. The initial minimum one (1) year Program term is specified on the Form Agreement (“Initial Term”). This Agreement shall automatically renew for successive one (1) year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either Party terminates the Agreement by written notice provided to the other Party at least 60 days’ prior to the start of a Renewal Period. Either Party may terminate this Agreement upon the other Party’s material breach if the breaching Party fails to cure such breach within the thirty (30) day period following notice. Additionally, Banyan may terminate this Agreement at any time if it has reason to believe that Customer may be unable to continue to pay the Membership Fee or believes the Program or any of its Banyan’s activities hereunder may be inconsistent with applicable laws and/or regulations.
- Membership Fees; Payment Terms.
- The fee for the Program (“Membership Fee”) for the Initial Term is set forth on the Form Agreement. Banyan reserves the right to change the Membership Fee pricing and billing methods applicable to any Renewal Term by providing notice to Customer at least thirty (30) days prior to the start of such applicable Renewal Period Date; provided, however, that Banyan reserves the right to increase the Membership Fee at any time during the Initial Term upon thirty (30) days’ notice to Customer to reflect any increases in its costs for providing the Program to Customer.
- Payments of the Membership Fee shall be made on an annual or quarterly basis as set forth in the Form Agreement with the first such payment due and payable upon the Effective Date set forth in the Form Agreement. Except as set forth in this Agreement, Membership Fees are non-refundable and Customer agrees to pay the total amount of the initial two-year Membership Fee and any Annual Renewal Terms regardless of whether Customer continues to use the Program during any such period or discontinues such use at any time during any such period. Customer hereby authorizes Banyan to charge Customer’s chosen payment method upon the Effective Date, and again at the beginning of each subsequent Renewal Term. The Membership Fee does not include any applicable taxes, which shall be Customer’s responsibility. Late payments will be subject to interest at the lower of the 1.5% per month or the highest amount per month allowed by law.
IN NO EVENT SHALL BANYAN OR ITS AFFILIATES BE LIABLE TO ANY CUSTOMER OR ANY END USER WITH RESPECT TO THE THIS AGREEMENT AND/OR ANY OF THE PROGRAM PRODUCTS AND SERVICES, FOR ANY (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE OR CONSEQUENTIAL DAMAGES, (B) LOSS OF PROFITS, (C) BUSINESS INTERRUPTION, (D) LOSS OF OR DAMAGE TO REPUTATION OF ANY PARTY, OR (E) ANY DAMAGES AWARDED IN ANY DISPUTE BETWEEN CUSTOMER AND ANY THIRD PARTY.
BANYAN (AND ITS AFFILIATES’) MAXIMUM COMBINED AGGREGATE LIABILITY TO CUSTOMER FOR ANY CLAIMS, DAMAGES, LIABILITIES, INJURIES OR CAUSES WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE PROGRAM PRODUCTS AND SERVICES, REGARDLESS OF THE FORM OF ACTION (WHETHER SUCH LIABILITY ARISES DUE TO NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR FOR ANY OTHER REASON), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE AMOUNT PAID, IF ANY, BY CUSTOMER TO BANYAN IN CONNECTION WITH SUBSCRIBING TO THE PROGRAM HEREUNDER IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (B) US ONE HUNFRED DOLLARS ($100).