MGC Supply provides facilitation of purchases and sales of compounded pharmaceutical products (“Products”) and general medical supplies. MGC Supply engages with a wide array of customers including but not limited to medical spas, health and medical care providers, health facilities and health clubs (“Customer”), to purchase Products.

MGC Supply facilitates each order (“Order”) from the Customer for Products manufactured by the supplier of the Products (“Supplier”) and the Supplier then dropships each Order to the Customer. The foregoing transactions are called Facilitations.

The following Terms and Conditions shall apply to each Facilitation and shall be binding on the Supplier. Supplier agrees that by accepting the Order as facilitated by MGC Supply, the Supplier agrees to the Terms and Conditions set out herein.

1.   Title to Goods. Supplier acknowledges that at no time during the Facilitation does MGC Supply take possession or title to the Products.

2.   Non-Solicitation. Supplier agrees that, For a period of thirty-six (36) months after the most recent facilitated Order from MGC Supply or its affiliates Supplier will not directly or indirectly solicit or divert or accept business relating in any manner from Customers of MGC Supply or any of the customers or accounts of MGC Supply with which Supplier had any contact as a result of Supplier’s engagement with MGC Supply. In the event of a breach of this provision, Supplier shall pay MGC Supply an amount equal to two times all monies paid to Supplier by the Customer(s).

3.   Entire agreement. This Agreement constitutes the entire Agreement between the parties hereto with respect to the subject matter hereof, and it supersedes all prior oral or written agreements, commitments, or understandings, with respect to the matters provided for herein. 

4.   Amendment.  This Agreement shall not be amended or waived except by written amendment duly executed by the authorized representatives of the party or parties to be charged therewith. 

5.   Waiver. The waiver by either Party of a default or breach of any provision of this Agreement by the other Party shall not operate or be construed as a waiver of any subsequent default or breach of the same or of a different provision by that Party.  No waiver or modification of this Agreement or of any covenant, condition, or limitation contained in this Agreement shall be valid unless in writing and duly executed by the Party or Parties to be charged therewith.

6.   Choice of Law.  This Agreement shall be governed by and construed in accordance with the domestic laws of the Commonwealth of Massachusetts without giving effect to any choice of law or conflict of law provision or rule (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the Commonwealth of Massachusetts.

7.   Successors and assigns.  This agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. 

8.   Survival.  Provisions of this Agreement identified by the context to survive the termination or expiration of this Agreement shall so survive. 

9.   Additional documents. The Parties agree to execute and deliver such documents subsequent to closing as may be necessary to effectuate the intentions of the Parties hereto.  Notwithstanding the foregoing, neither party will be required to assume obligations greater than those intended herein.

10.        Severability; Intention of the Parties.  If any provision herein should, for any reason, be construed by a court of competent jurisdiction to be invalid or unenforceable, all other provisions shall remain in full force and effect and be construed so as to make this Agreement enforceable to the maximum extent allowed by law. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof. If the invalidity of any part, provision, representation or warranty of this Agreement shall deprive any party of the economic or other benefits intended to be conferred by this Agreement, the parties shall negotiate, in good-faith, to develop a structure the economic or other effects of which are as close as possible to the intended effect of this Agreement without regard to such invalidity. The court or other tribunal making such determination is authorized and instructed to modify this Agreement so as to effect the original intent of the parties as closely as possible so that the transactions and agreements contemplated herein are consummated as originally contemplated to the fullest extent possible.

11.        Number/Gender. Words used herein regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context requires.

12.        Limitation of action.  Any legal action arising from or in connection with this contract must be brought within one year after the cause of action arises notwithstanding any otherwise applicable statute of limitation.

13.        Dispute Resolution Process. Each party hereby agrees that in the event of a dispute between them, they will first endeavor to reach a resolution and the principals of each party will engage in discussions in that effort. If the parties are unable to reach a resolution, they agree to submit the dispute to non-binding mediation for resolution prior to initiating litigation. 

14.        Venue. The parties agree that the Superior Court of the Commonwealth of Massachusetts, Norfolk or Suffolk County, shall be the only proper forum and court of competent jurisdiction for any dispute arising hereunder.

15.        Electronic signature.  This Agreement shall be deemed to be a legally enforceable contract under the United States Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq, whether it remains in electronic form or is subsequently reduced to a written document.  This Agreement in electronic form shall be deemed to have been authentically executed by each of the parties hereto upon that party’s confirmation via email or by that party’s use of digital signature, electronic or facsimile signature, or any other means agreed upon by the parties to verify identity and content.

16.        No Partnership. The parties agree that each party will act as an independent contractor, and not a partner, joint venturer or employee of the other party, in the performance of their respective duties under this Agreement.

17.        Force Majeure.  Without limiting the foregoing, MGC Supplies shall not be liable for any delay in performing any covenant or obligation hereunder, or any cessation of or interruption of services, as a result of matters outside of its control, including but not limited to those arising out of fire, flood, explosion, war, strike, power blackout, nature, civil or military authority, epidemic, pandemic or acts of God.

18.        Limitation of Damages; Limitation of Remedies.  Neither party shall be liable in any case for any loss of use, lost profits, special, incidental, consequential, indirect, or punitive damages.  In no event shall MGC Supply liability exceed reimbursement of the monies paid by the Supplier pursuant to this contract in the prior trailing six (6) months.

19.        Counterparts; Facsimile and E-signatures. This Agreement may be executed in counterparts, each of which when so executed and delivered shall be taken together to be an original; but such counterparts shall together constitute one and the same document.  Facsimiles and e-signatures shall have the force of an original.

20.        Counsel.  The parties acknowledge that they have reviewed this agreement with legal counsel and such other professional counselors of their choosing or have had the opportunity to do so and have declined.

21.        Indemnification. Supplier shall indemnify, defend and hold MGC Supply (and all officers, directors, employees, agents, and affiliates thereof)(“Releasees”) harmless from and against: (a) any claims, demands, actions, losses, damages, assessments, charges, liabilities, costs, and expenses (including reasonable interest, penalties, and attorney’s fees and disbursements)(“Claims”) which may at any time be suffered or incurred by, or be asserted against, Releasees, directly or indirectly, on account of or in connection with the Products or Orders including, without limitation, any Claims arising from defective Products, regulatory violations, or harm to the Customer or any end-user of the Products; and, (b) breaches of any the terms of this Order.

22.        Supplier warrants and represents to MGC Supply and its Customers that the following are true and will be true with respect to Supplier’s performance hereunder:

                                 i.    Supplier complies with all federal, state, and local laws and regulations including without limitation, with respect to quality control and testing;

                                ii.    Supplier complies with best practices for pharmaceutical compounding facilities;

                              iii.    Supplier shall provide Products in according with Orders and all Products shall meet all stated and other requirements for formulations, potency, and purity;

                              iv.    Supplier shall not sell any adulterated, mislabeled or misbranded Product;

                                v.    The Products do not infringe on any patents, trademarks, or other intellectual property rights;

                              vi.    There are no pending or threatened lawsuits or regulatory actions of any kind pertaining to or concerning the Products;

                             vii.    Supplier maintains up to date products liability insurance;

                           viii.    Supplier shall store and deliver Products using proper storage, transportation, and handling protocols so as to maintain Product stability and efficacy.

                              ix.    Supplier is and shall remain at all times fully licensed and legally authorized to manufacture, store, and distribute the Products.