Exhibit A – Terms of Service
Last updated May 15, 2023
Exhibit A – Terms of Service
Exhibit A – Terms of Service
These Terms of Service under the Client Service Agreement by and between PRN and Client are incorporated into the Client Service Agreement, as such Terms of Service may be amended from time to time.
1. Definitions. Capitalized terms have the meanings ascribed to them in this Exhibit A, including the definitions set forth below, in the exhibits to this Agreement, as they may be updated and supplemented from time to time, and elsewhere in this Agreement:
“Active Subscriber” means an individual located in the United States, a United States territory, or member of the United States Armed Forces serving in a foreign territory, who is: (a) directly contracting with Client to use the Client Solution; (b) provided access to the Client Solution by an Active Subscriber to the Client Solution as a result of being employed by, providing contracted services to, otherwise rendering health care services as an independent provider; or (c) a legally authorized representative of an entity Active Subscriber to the Client Solution.
“Agreement” has the meaning set forth in the preamble of this Agreement.
“Applicable Law” means any and all applicable federal, state, local common law rules, regulations directives and guidelines, including but not limited to the Health Insurance Portability and Accountability Act (“HIPAA”) and related regulations; the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and related regulations; the Anti-Kickback provisions of the Social Security Act and related regulations; and the federal Physician Self-Referral Prohibition provisions of the Social Security Act and related regulations.
“Certification” means DoseSpot Platform and Custom Portal, if applicable will be (a) tested by PRN for technical compatibility with the Surescripts health information exchange, (b) certified by Surescripts in such manner as Surescripts, in its sole discretion, determines, and (c) if controlled substances are to be prescribed, audited by an auditor chosen by PRN and approved by the U.S. Drug Enforcement Administration (“DEA”).
“Client” has the meaning set forth in the preamble of this Agreement.
“Client Integration Services” means the services necessary to integrate the DoseSpot Platform with the Client Solution.
“Client Marketing Information” means Client’s marketing claims and other marketing information.
“Client Proprietary Content” means information entered into the DoseSpot Platform by Client, which shall be limited to information necessary to facilitate prescription transmission and processing and shall exclude, without limitation, Client Marketing Information.
“Client Solution” means Client’s current software. “Custom Portal” means the web portal integration into the Client Solution by Client and the methods for transferring data between the DoseSpot Platform and Client Solution developed, used, or otherwise marketed by PRN; “Custom Portal” does not include text, graphics, interfaces, or business logic for e-prescribing that reside in the Client Solution and make calls to the DoseSpot Platform to fulfill e-prescribing services.
“DoseSpot Platform” or “Platform” has the meaning set forth in the preamble of this Agreement.
“DoseSpot Technology” has the meaning set forth in the preamble of this Agreement.
“Initial Subscription Term” has the meaning set forth in the preamble of this Agreement.
“Integrations” has the meaning set forth in the preamble of this Agreement.
“Party” and “Parties” has the meaning set forth in the preamble of this Agreement.
“Prescriber End User” means an Active Subscriber of the Client Solution, who (if required by Applicable Law to be licensed, registered, or otherwise authorized by a governmental authority to perform the applicable health care services) is properly and duly licensed, registered, or otherwise authorized with the appropriate governmental authority to perform the applicable health care services that has been issued a National Provider Identifier by the appropriate governmental authority.
“PHI” means (subject to the definition at 45 C.F.R. § 160.103) protected health information that PRN receives from Client or that PRN creates or receives on behalf of Client.
“PRN” has the meaning set forth in the preamble of this Agreement.
“Renewal Subscription Term” has the meaning set forth in the preamble of this Agreement.
“Subscription Term” has the meaning set forth in the preamble of this Agreement.
“Surescripts” has the meaning set forth in Section 3.7 below.
“Surescripts Network” has the meaning set forth in the preamble of this Agreement.
“Surescripts Requirements” shall be as set forth on Exhibit B.
2. Description of Services
2.1 Services Generally. From time to time, the Parties may enter into one or more Order Forms pursuant to which Client (a) subscribes to specified DoseSpot Technology (each, a “Subscription”) for the Initial Subscription Term (renewing as set forth on the Cover Page); and/or (b) engages PRN to provide related implementation, integration, training, consulting, or other services (“Professional Services” or “Services”), in each case listing the fees (“Fees”) to be paid by Client to PRN for such Subscription and/or Services. Each Order Form will be consecutively numbered (Order Form No. 1, Order Form No. 2, etc.).
2.2 Client Cooperation. Client shall timely provide, at no cost to PRN, such materials, systems, facilities, data, information, assistance, access to personnel, and other cooperation as PRN reasonably requests (collectively, “Cooperation”). PRN shall be entitled to rely on the timeliness, sufficiency, and accuracy of such Cooperation. Client acknowledges that such Cooperation may be essential to PRN’s performance and agrees that PRN will not be liable for any performance delay or deficiency to the extent related to Client’s delay or deficiency in providing Cooperation. Client acknowledges that such delays or deficiencies may require an adjustment to the schedule and/or fees previously agreed upon consistent with the scope and duration of the delay or deficiency.
2.3 Subcontracting. PRN may freely subcontract any obligation to perform all or part of any Services (or other services hereunder) or provide any Subscription or DoseSpot Technology, but remains responsible for the actions or omissions of any such subcontractors.
3. Platform Access
The DoseSpot Platform is designed to enable prescription information to be entered for transmission to and processing by the Surescripts Network. It includes (a) text, graphics, and data (excluding Client Proprietary Content and Client Marketing Information); (b) an interface and procedures for selecting, searching, using, interacting with and acting upon such text, graphics, and data; and (c) software, including scripts, whether intended to execute on one or more servers or installed on or downloaded to a client device, for implementing the foregoing.
3.2 Restrictions. Client will not provide access to the Licensed Technology to any person who is not an authorized employee or independent contractor of Client (“Authorized User”). Client will be responsible and liable for all Authorized Users’ and Client’s non-Authorized Users’ compliance with the terms and conditions of this Agreement. Client’s use of any Licensed Technology is limited to the scope of the rights granted under Section 3.1 and as set forth in this Agreement, including the applicable Order Form. Client shall not otherwise use Licensed Technology in any way. The DoseSpot Technology, including the Licensed Technology, constitutes proprietary information and valuable trade secrets of PRN. Without limiting the generality of the foregoing, Client shall not, and shall not permit or suffer any third party to: (a) use any DoseSpot Technology other than the Licensed Technology; (b) use the Licensed Technology for any purpose other than sending prescriptions as expressly permitted by and in accordance with this Agreement, including the applicable Order Form; (c) modify, adapt, alter, translate, or create derivative works of or based on any DoseSpot Technology or any accompanying materials; (d) sublicense (except to the extent expressly permitted in the applicable Order Form), distribute, sell, use for service bureau or timesharing purposes, lease, rent, loan, or otherwise transfer or make available the Licensed Technology to any third party; (e) reverse engineer, decompile, disassemble, decode, adapt, or otherwise attempt to derive the source code or the underlying design, functionality, or structure of any DoseSpot Technology; (f) otherwise use, reproduce, display, or copy any software or code that is DoseSpot Technology; (g) use DoseSpot Technology to store or process any PHI without PRN’s prior written consent; (h) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm any other PRN client’s or user’s access to or use of DoseSpot Technology; (i) display, modify, reproduce or distribute any images, or portion(s) thereof, included with, visible upon access to, or relating to the Licensed Technology, including the Platform and the Custom Portal; (j) access or use any DoseSpot Technology outside of the United States; or (k) access or use any DoseSpot Technology in violation of any Applicable Laws.
3.3 Monitoring. Subject to Applicable Law, PRN may but is not obligated to (a) monitor Client prescribing patterns, including any seemingly excessive prescriptions for controlled substances, and may voluntarily report anomalies to relevant federal and state authorities, provided PRN (i) notifies Client of the perceived anomaly; and (ii) makes any such voluntary reporting in good faith; and (b) monitor, collect, and share with Client usage data regarding the Licensed Technology and compile statistical and performance information related to the operation and access to the Licensed Technology for the internal use of Client and PRN and other lawful purposes. Without limiting the generality of the foregoing, PRN may (x) verify that use of the Licensed Technology is within the parameters specified in this Agreement, (y) track and assess fees and other amounts payable hereunder, and (z) analyze performance. If such monitoring reveals that the Licensed Technology is being used contrary to the terms and conditions of this Agreement, Client shall promptly pay PRN additional fees consistent with actual use of the Licensed Technology, which assessment of additional fees shall be without prejudice to any other legal or equitable remedies PRN may have.
3.4 No Other Rights. PRN grants and Client obtains only the rights granted under this Agreement, including the applicable Order Form. Any rights not expressly granted to Client hereunder are expressly reserved to PRN.
3.5 Prescription Fulfillment. PRN shall have no responsibility for confirming the processing of a prescription by the pharmacy to which Client directed the script for transmission. As between the Parties, any such responsibility related to fulfillment of a prescription belongs solely to Client.
3.6 PRN Responsibilities. PRN shall develop and maintain software for implementing the DoseSpot Platform. PRN shall have no obligation to make upgrades or to make improvements to DoseSpot Technology, including the Licensed Technology, or to make upgrades or improvements available to Client, except to use commercially reasonable efforts as may be necessary to keep the Platform functioning during the then-current Term consistent with the standards in this Agreement; provided doing so is within PRN’s control and subject to the terms and conditions of this Agreement. Any upgrades or improvements that are made available to Client may be licensed under the terms of this Agreement and may have additional associated Fees as set forth in an Order Form or amendment thereto. PRN agrees to the Service Level Agreement as set forth on Exhibit D.
(a) Certification. Client acknowledges that using the Platform and Custom Portal to send prescriptions via the Surescripts Network is dependent upon Client’s receipt of certification from Surescripts LLC (“Surescripts”) or its designee. Certification criteria are determined in the sole discretion of Surescripts and may change at any time without notice to Client or PRN.
(b) Flow-down Obligations. Client and its Prescriber End Users will access and utilize the Surescripts Network only in accordance with the terms and conditions of this Agreement, including the provisions set forth in the Surescripts Requirements set forth on Exhibit B that Surescripts requires PRN to flow-down to Client and/or Prescriber End Users or otherwise facilitate PRN’s compliance with its obligations to Surescripts. Client acknowledges that the agreement between Surescripts and PRN requires that Client and its Prescriber End Users agree to the Surescripts agreement terms and conditions included herein as a condition to access and utilize the Surescripts Network and maintain its Surescripts certification. Client agrees to comply, and to cause its Prescriber End Users to comply, with the Surescripts Requirements as set forth on Exhibit B.
(c) End Date. PRN shall provide to Client notice within a commercially reasonable time in advance of the effective date of any expiration or termination of its agreement with Surescripts and that the Surescripts Network and services will no longer be available to Client or its Prescriber End Users after such time.
4. Professional Services
4.1 PRN Obligations. PRN will use commercially reasonable efforts to (a) perform and complete the Services in accordance with this Agreement, including the applicable Order Form, and (b) provide suitably trained and skilled personnel to perform the Services.
4.2 Client License to PRN to Perform Services. Client hereby grants to PRN a non-exclusive, worldwide, royalty-free, fully paid-up license to intellectual property owned or to which Client has rights as necessary or useful for PRN to perform the Services.
5.1 Fees. Client will pay PRN the Fees set forth in the applicable Order Form pursuant to this Agreement, including:
(a) User Fees for access and use of the Licensed Technology, which shall be due monthly in advance (with the first such fee due upon execution of this Agreement unless otherwise agreed);
(b) Service Fees for Services (e.g., Client Integration Services), which shall be payable when billed;
(c) Certification Fee for DEA certification or recertification (if applicable), which shall be payable when billed; and
(d) Other Fees as set forth in the applicable Order Form.
Client acknowledges and agrees that it shall be solely responsible for and must manage activation and deactivation of Prescriber End Users. To the extent applicable, User Fees will automatically adjust pursuant to the calculation set forth in the governing Order Form.
The Parties acknowledge and agree that all Fees shall be consistent with the fair market value of access to and use of the Licensed Technology and the Services provided to Client, none of which shall be reimbursed from any other source, and shall not take into account the volume or value of business generated between the Parties.
5.2 Invoicing. PRN shall invoice Client monthly and Client shall make payment net fifteen (15) days of the invoice date. Payments due under this Agreement shall be made electronically or sent to its notice address (or such other address for payment it designates by written notice). PRN shall provide Client a payment authorization form that Client will promptly complete and return.
5.3 Late Payments. Any amount not paid when due shall be subject to a late charge of one and one-half percent (1½%) per month of the amount due, or if less the maximum amount allowable by law, and shall accrue until paid in full. Such remedy shall not limit any of PRN’s remedies and shall be in addition to all other remedies available at law or in equity.
5.4 Suspended or Terminated Access. Without limitation, PRN may, at its sole discretion, suspend or terminate the ability of any Prescriber End Users to access or use the Licensed Technology, or any portion thereof (a) for so long as Client has not paid any past due amount in full, provided, however, that PRN gives Client at least ten (10) days notice of its intention to do so; or (b) to the extent PRN reasonably and in good faith believes access or use by such Prescriber End User has or would violate any Surescripts Requirements. Client hereby indemnifies, defends, and holds PRN harmless from any and all losses, damages, and liabilities of any kind (including, without limitation, attorneys’ fees) resulting from or related to (x) Client’s failure to pay amounts when due, (y) Client’s breach or anticipated breach of any Surescripts Requirements, or (z) PRN’s suspension or termination of Prescriber End Users’ access to or use of Licensed Technology.
5.5 Taxes. All amounts payable by Client to PRN are exclusive of any sales, use, and other taxes or duties, however designated, including withholding, royalties, know-how payments, customs, privilege, excise, sales, use, value-added, and property taxes (collectively, “Taxes”). Client will be solely responsible for payment of any Taxes, except for those based on PRN’s income. Client will not withhold any Taxes from any amounts due to PRN.
5.6 Pricing. All Fees that apply during any Renewal Subscription Term shall increase by two percent (2%) from the Fees payable during the prior Subscription Term or Renewal Subscription Term, as applicable. PRN will notify Client at least forty-five (45) days prior to the end of the then current Subscription Term or Renewal Subscription Term of any increase in the Fees that are greater than a two percent (2%) increase in such Fees from the prior Subscription Term or Renewal Subscription Term. All such increases in Fees shall automatically take effect on commencement of the Renewal Subscription Term unless Client elects to terminate the applicable Order Form or this Agreement as set forth in Section 12.2.
6. Representations and Warranties of Client. Client hereby represents, warrants, and covenants under penalty of perjury and fraud that:
6.1 No Conflicts. Client is not under any pre-existing obligation inconsistent with the provisions of this Agreement and shall not enter into any such obligation and, without limiting the generality of the foregoing, it is not a party to any agreement or other arrangement with Surescripts.
6.2 Compliance with Laws. (a) Client shall perform under this Agreement and use the Licensed Technology only in compliance with Applicable Law, including laws, rules, and regulations relating to controlled substances, licensure, and the issuance by valid prescriptions, and shall ensure that it and all Prescriber End Users have all required licenses; and (b) without limiting the generality of the foregoing, (i) every Prescriber End User that uses or will use the Licensed Technology has or will have, prior to such use, represented to Client that such Prescriber End User possesses the requisite licensure or authority to enter a prescription in or otherwise use the Licensed Technology, and Client shall activate or deactivate such users accordingly; (ii) every Prescriber End User has or will have, prior to use of any patient information, represented to Client that such Prescriber End User has or will have obtained all patient consents and/or authorizations required by Applicable Law; (iii) all prescriptions entered in the Platform are the result of a valid clinical judgment of the responsible Prescriber End User based upon an evaluation of the patient in accordance with Applicable Law; and (iv) the marketing and compensation practices of Client comply with Applicable Law, including, to the extent applicable, those enforced by the U.S. Food and Drug Administration and the U.S. Department of Health and Human Services Office of Inspector General.
6.3 Testing Environments. Client shall not enter PHI in testing software environments of the Licensed Technology.
6.4 Rights. Client has the right and unrestricted ability to assign the intellectual property to PRN as set forth in Section 10, and such intellectual property does not infringe upon any copyright, trademark, right of publicity or privacy, or any other intellectual property or proprietary right of any person, whether contractual, statutory or at common law.
6.5 Conduct. Client shall not act in any manner that may detrimentally affect the operations, prospects, or reputation of PRN or any of its customers.
6.6 Nondisparagement. Neither Client nor any Prescriber End Users shall disparage, or make any negative statements about, PRN or any of PRN’s officers, managers, members, employees, customers, investors, agents, advisors or other consultants, in any manner likely to be harmful to PRN or its business or business reputation; provided that Client may respond accurately and fully to any question, inquiry, or request for information when legally required.
6.7 Insurance. With respect to all acts and omissions related to this Agreement by either Party, each Party shall have and maintain the following insurance coverages.
(a) Commercial General Liability Insurance with minimum limits of $1 million per occurrence and $2 million annual policy aggregate, including but not limited to coverage for premises liability, completed operations, contractual liability, bodily injury (including death), and property damage, covering all of Client’s activities related to this Agreement;
(b) Workers’ Compensation as required by Applicable Law;
(c) Employer’s Liability Insurance with minimum limits of (i) $1 million per occurrence covering bodily injury by accident, (ii) $1 million per employee covering bodily injury by disease, and (iii) $2 million annual policy aggregate;
(d) Professional Liability (E&O) Insurance covering all activities of Client and its Prescriber End Users related to this Agreement, with minimum limits of $1 million per occurrence and $2 million annual policy aggregate; and
(e) Cyber Liability Insurance covering all activities of Client and its Prescriber End Users related to this Agreement, with minimum limits of $1 million per occurrence and $2 million annual policy aggregate.
If, in any of the foregoing cases, Client has procured a claims-made based policy (or policies) and it (or they) are cancelled or not renewed, Client agrees to exercise any option in such policy (or policies) to extend the reporting period to the maximum period permitted; provided, however, that Client need not exercise such option if the superseding insurer will accept all prior claims. Each of Client’s insurance policies shall (i) be issued by companies that have an A.M. Best rating of not less than “A-”, and are in a size category which is not lower than “VIII”; (ii) be primary and noncontributory with any of PRN’s insurance; (iii) add PRN as an additional insured (except for those policies maintained pursuant to paragraphs (c), (e), and (f) of this Section); (iv) be maintained during the Term and for a period of not less than three (3) years thereafter; and (v) not be cancelled or non-renewed except upon at least sixty (60) days prior written notice to PRN. Upon request, Client shall provide to PRN certificates evidencing all insurance and endorsements required by this Section. Nothing in this Section shall be construed as limiting in any manner Client’s obligations or liability to PRN under this Agreement.
7. Representations and Warranties of PRN
7.1 General. PRN hereby represents, warrants, and covenants that:
(a) General Representation. PRN will (i) use commercially reasonable efforts consistent with prevailing industry standards to perform and maintain the DoseSpot Platform in a manner that minimizes errors and interruptions in the DoseSpot Platform, and (ii) perform its Services to Client in a professional and workmanlike manner.
(b) Access to Client Materials. PRN hereby represents, warrants, and covenants that PRN shall not access any Client Proprietary Content or Client Marketing Information in a manner or for any purpose other than that authorized by this Agreement.
(c) Compliance with Applicable Law. PRN’s web hosting and production services and privacy practices related to the DoseSpot Platform shall be operated in accordance with Applicable Law.
(d) Anti-Virus. PRN maintains industry standard methods, including current anti-virus software, to defend against viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
7.2 Additional Representations and Warranties. PRN represents and warrants, and Client agrees, that (a) it may access, monitor, and/or review Client’s activity and data in the cloud-based instance of the DoseSpot Platform; (b) its Professional Services do not in any way provide or include medical advice and that any clinicians using the DoseSpot Platform must use their independent professional medical judgment in determining the appropriate care and treatment for patients; and (c) no joint venture, physician-patient, or any other relationship between the Parties is created by using the DoseSpot Platform.
7.3 Nonconformity. The DoseSpot Platform and/or PRN may have defects or deficiencies that may not be corrected by PRN and are subject to change in PRN’s sole discretion. In the event Client provides PRN written notice of a material nonconformity of any of PRN’s foregoing warranties, PRN will use all reasonable efforts to promptly remedy such nonconformity at no additional charge to Client. The foregoing states PRN’s entire liability and Client’s sole and exclusive remedy for breach of any warranty of PRN.
7.4 Primary Disclaimer. THE DOSESPOT TECHNOLOGY AND ALL SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND PRN (INCLUDING ITS LICENSORS) DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT THERETO EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT. PRN DOES NOT WARRANT THAT THE DOSESPOT PLATFORM OR THE CONTENT OR INFORMATION MADE AVAILABLE THEREON WILL BE SECURE, UNINTERRUPTED OR ERROR FREE; NOR DOES PRN MAKE ANY WARRANTY THAT THE DOSESPOT PLATFORM OR SUCH CONTENT WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, INCLUDING THOSE OF CLIENT’S PRESCRIBER END USERS OR OTHER CUSTOMERS, ACHIEVE ANY PARTICULAR RESULT, BE COMPATIBLE WITH OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. PRN MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. ALL THIRD-PARTY SERVICES ARE ALSO PROVIDED ON AN “AS-IS” BASIS AND SUBJECT TO ANY APPLICABLE THIRD-PARTY SERVICE PROVIDER TERMS AND CONDITIONS. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY SERVICE PROVIDER.
7.5 Additional Disclaimers. Without limiting the generality of Section 7.4, the following additional disclaimers apply:
(a) IN RESPECT OF USE OF THE E-PRESCRIBING FUNCTIONALITY OF THE DOSESPOT PLATFORM, INCLUDING, WITHOUT LIMITATION, CLIENT’S UNDERLYING USE OF THE NETWORK OF PRN’S PRESCRIPTION CREDENTIALING THIRD-PARTY PROVIDER, NEITHER DOSESPOT NOR ANY THIRD-PARTY PROVIDERS MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY THROUGH SUCH NETWORK OF ANY PARTICULAR DATA SOURCE OR OTHER PARTICIPANT IN SUCH NETWORK. AT ANY TIME, DATA SOURCES OR OTHER PARTICIPANTS IN SUCH NETWORK MAY BE ADDED TO OR DELETED FROM SUCH NETWORK OR MAY LIMIT ACCESS TO THEIR DATA OR ELECT NOT TO RECEIVE PRESCRIPTIONS OR OTHER MESSAGES FROM CLIENT AND/OR CLIENT’S AUTHORIZED USERS, AND SUCH CHANGES MAY OCCUR WITHOUT PRIOR NOTICE TO PRN OR CLIENT.
(b) PRN’S PRESCRIPTION CREDENTIALING THIRD-PARTY PROVIDER USES AVAILABLE TECHNOLOGY TO MATCH PATIENT IDENTITIES IN ORDER TO PROVIDE ITS SERVICES, HOWEVER, BECAUSE PATIENT INFORMATION IS MAINTAINED IN MULTIPLE PLACES, NOT ALL OF WHICH ARE ACCESSIBLE TO SURESCRIPTS, AND BECAUSE NOT ALL PATIENT INFORMATION IS KEPT IN A STANDARD FASHION OR IS REGULARLY UPDATED, IT IS POSSIBLE THAT FALSE MATCHES MAY OCCUR OR THAT THERE MAY BE ERRORS OR OMISSIONS IN THE PRESCRIPTION BENEFIT AND/OR MEDICATION HISTORY INFORMATION PROVIDED PURSUANT TO ITS SERVICES. THEREFORE, IT IS THE RESPONSIBILITY OF ANY TREATING PHYSICIAN OR OTHER HEALTH CARE PROVIDER OR FACILITY (NOT THE RESPONSIBILITY OF PRN OR PRN’S THIRD-PARTY PROVIDERS) TO VERIFY PRESCRIPTION BENEFIT OR MEDICATION HISTORY INFORMATION THROUGH OTHER MEANS WITH EACH PATIENT AND/OR THE PATIENT’S REPRESENTATIVES BEFORE SUCH INFORMATION IS RELIED UPON OR UTILIZED IN DIAGNOSING OR TREATING THE PATIENT. NEITHER PRN NOR PRN’S THIRD-PARTY PROVIDERS ARE A HEALTH PLAN, HEALTH CARE PROVIDER OR PRESCRIBER. NEITHER PRN NOR PRN’S THIRD-PARTY PROVIDERS INDEPENDENTLY VERIFY OR REVIEW, AND CANNOT INDEPENDENTLY VERIFY OR REVIEW, THE INFORMATION TRANSMITTED THROUGH ANY NETWORK UNDERLYING THE PLATFORM FOR ACCURACY OR COMPLETENESS. PURSUANT TO THE FOREGOING, CLIENT ACKNOWLEDGES THAT THE PRESCRIPTION BENEFIT AND MEDICATION HISTORY INFORMATION PROVIDED HEREUNDER IS NOT COMPLETE OR ACCURATE, AND THAT NEITHER PRN NOR PRN’S THIRD-PARTY PROVIDERS (INCLUDING THEIR DATA SOURCES) PROVIDES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE PRESCRIPTION BENEFIT OR MEDICATION HISTORY INFORMATION, AND CLIENT HEREBY RELEASES AND HOLDS HARMLESS PRN AND EACH OF PRN’S THIRD-PARTY PROVIDERS (INCLUDING ANY PERSON OR ENTITY PROVIDING PRESCRIPTION BENEFIT OR MEDICATION HISTORY INFORMATION TO US OR PRN’S THIRD-PARTY PROVIDERS) FROM ANY LIABILITY, CAUSE OF ACTION, OR CLAIM RELATED TO THE COMPLETENESS OR LACK THEREOF OF THE PRESCRIPTION BENEFIT OR MEDICATION HISTORY INFORMATION. IN ADDITION, CLIENT ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE, AND THAT CLIENT MUST, AS A CONDITION TO USING THE PLATFORM, CONFIRM THE ACCURACY OF THE PRESCRIPTION BENEFIT AND MEDICATION HISTORY INFORMATION WITH CLIENT’S PRESCRIBER END USER’S PATIENT PRIOR TO PROVIDING ANY MEDICAL SERVICES BASED THEREON, AND THAT CLIENT OR ITS PRESCRIBER END USER, AS APPLICABLE, MUST USE ITS PROFESSIONAL JUDGMENT IN THE PROVISION OF CARE. CLIENT AGREES THAT PRN’S THIRD-PARTY PROVIDERS (AND THEIR DATA SOURCES) ARE THIRD-PARTY BENEFICIARIES TO THIS SECTION.
(c) ANY NETWORK UNDERLYING THE PLATFORM IS NOT INTENDED TO SERVE AS A REPLACEMENT FOR: (I) A WRITTEN PRESCRIPTION WHERE NOT APPROVED AS SUCH BY THE APPROPRIATE GOVERNMENTAL AUTHORITIES OR WHERE SUCH WRITTEN PRESCRIPTION IS REQUIRED FOR RECORD KEEPING PURPOSES; OR (II) APPLICABLE PRESCRIPTION DOCUMENTATION. USE OF SUCH NETWORK IS NOT A SUBSTITUTE FOR A HEALTH CARE PROVIDER’S STANDARD PRACTICE OR PROFESSIONAL JUDGMENT. ANY DECISION WITH REGARD TO THE APPROPRIATENESS OF TREATMENT, OR THE VALIDITY OR RELIABILITY OF INFORMATION, IS THE SOLE RESPONSIBILITY OF A PATIENT’S HEALTH CARE PROVIDER.
8. Relationship of the Parties
8.1 Independence. Client is an independent party and is not an agent, independent contractor, or employee of, and has no authority to bind, PRN by contract or otherwise. Nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture, or employer-employee relationship between PRN and Client.
8.2 Noninterference with Business. During the Term and for two (2) years thereafter, Client agrees not to interfere with the business of PRN in any manner. By way of example and not of limitation, Client agrees not to work on a project that will or has the potential to compete with PRN’s Platform services.
9. Confidential Information
9.1 Definition. As used in this Agreement, “Confidential Information” means any and all technical and non-technical information of a Party (the “Disclosing Party”) to this Agreement (including, without limitation, patents, copyrights and works of authorship, trade secrets, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, and software source documents) related to the current, future and proposed business, products and services of such Party, and its suppliers and customers, and includes, without limitation, information concerning development, design details and specifications, engineering, customer lists, business forecasts, sales, and marketing plans and any other similar information or data which is disclosed to the other party (the “Recipient”) or to which the Recipient otherwise gains access as a result of performing under this Agreement. “Confidential Information” also includes proprietary or confidential information of any third-party that may disclose such information to the Disclosing Party in the course of the Disclosing Party’s business, including, without limitation, Surescripts materials and third-party data made available through the Surescripts Network, and all other information that Client knew, or reasonably should have known, was the Confidential Information of PRN or a third party (in each case, whether labeled “Confidential” or not). Confidential Information does not include information that: (i) is in the Recipient’s possession at the time of disclosure as shown by the Recipient’s files and records immediately prior to the time of disclosure; (ii) before or after it has been disclosed to the Recipient, enters the public domain, not as a result of any action or inaction of the Recipient; (iii) is approved for release by written authorization of the Disclosing Party; (iv) is disclosed to the Recipient by a third party not in violation of any obligation of confidentiality; or (v) is independently developed by the Recipient without reference to the Disclosing Party’s Confidential Information.
9.2 Nondisclosure and Nonuse. The Recipient agrees not to use the Confidential Information of the Disclosing Party for any purpose except to the extent necessary to fulfill its obligations under this Agreement. The Recipient agrees not to copy, alter, modify, disassemble, reverse engineer or decompile any of the materials comprising Confidential Information, unless permitted in writing by the Disclosing Party, agrees to establish and maintain appropriate safeguards against the destruction or loss of Confidential Information, and otherwise agrees to safeguard Confidential Information in a manner no less restrictive than it protects its own information of a similar nature. The Recipient agrees not to disclose the Confidential Information to any third parties or to any of its employees, contractors or agents except those who have a need to know the Disclosing Party’s Confidential Information to enable the Recipient to fulfill its obligations under this Agreement; provided, that such parties shall be made aware that such Confidential Information is confidential to the Disclosing Party and shall be under a written contractual restriction on non-disclosure and proper treatment of Confidential Information that is consistent with and no less restrictive than the terms of this Section. Notwithstanding the foregoing, the Recipient may disclose the Disclosing Party’s Confidential Information to the extent required by a valid order of a court or other governmental body or by Applicable Law and to its attorneys, financial advisers, lawyers or accountants (“Representatives”); provided, however, that the Recipient will use all reasonable efforts to notify the Disclosing Party of the obligation to make such disclosure in advance so that the Disclosing Party will have a reasonable opportunity to object to such disclosure. The Recipient agrees that it shall treat the Confidential Information with the same degree of care as it accords its own Confidential Information of a similar nature; provided that in no event shall the Recipient exercise less than reasonable care to protect the Disclosing Party’s Confidential Information. The Recipient agrees to advise the Disclosing Party in writing of any misappropriation or misuse by any person of the Disclosing Party’s Confidential Information of which the Recipient may become aware. The Recipient will not communicate any information to the Disclosing Party in violation of the proprietary rights of any third party.
9.3 Return or Destroy. Any Confidential Information furnished to the Recipient, and all copies thereof, at the earlier of the Disclosing Party’s request, or the termination of the business relationship between the Disclosing Party and the Recipient, at the Disclosing Party’s option, will either be: (a) promptly returned to the Disclosing Party; or (b) destroyed by the Recipient (with the Recipient providing written certification of such destruction to the Disclosing Party) provided, however, that neither Recipient nor any of its Representatives shall be required to destroy any electronic copy of any Confidential Information that is created pursuant to its standard electronic backup and archival procedures if (i) personnel whose functions are not primarily information technology in nature do not have access to such retained copies, and (ii) personnel whose functions are primarily information technology in nature have access to such copies only as reasonably necessary for the performance of their information technology duties (e.g., for purposes of system recovery); provided, further, however, that Recipient and its Representatives shall continue to be bound by the terms and conditions of this Agreement with respect to any such retained Confidential Information.
9.4 Surescripts Information. Client shall keep confidential any proprietary and/or confidential information of Surescripts or its participants to which it has access.
9.5 No Solicitation. In order to enhance the confidentiality and non-use provisions of this Agreement and to protect each Party’s Intellectual property, during the Term and for six (6) months after its expiration or termination neither Client nor any of its Representatives shall solicit or attempt to solicit, directly or indirectly, any employee, advisor, contractor, or consultant of PRN to terminate his, her, or its relationship with PRN in order to become an employee, advisor, contractor, or consultant of or to any other person or entity; provided that a general advertisement shall in no event be deemed to be a breach of this Section.
9.6 Other Rights. Client agrees and understands that this Section 9 (Confidential Information) supplements, and does not supersede, any rights PRN may have in law or equity with respect to protecting trade secrets or confidential or proprietary information.
10. Intellectual Property
10.1 Background IP.
(a) Client Background IP. Except as otherwise provided herein, Client hereby does have and shall maintain, as between Client and PRN, full and exclusive ownership of all Client Proprietary Content, Client Solution and Client Marketing Information (collectively, “Client Background IP”).
(b) PRN Background IP. PRN hereby does have and shall maintain, as between Client and PRN, full and exclusive ownership of all intellectual property owned or acquired by PRN existing prior to commencement of or outside this Agreement, even if such are utilized by Client hereunder (collectively, “PRN Background IP”).
10.2 Foreground IP. All right, title, and interest in all intellectual property conceived, developed, or reduced to practice in the course of this Agreement by Client or PRN or any of their respective employees, Representatives, or agents, or those of such Party’s affiliates (collectively, “Related Parties”), individually or jointly, including without limitation all inventions, discoveries, results, research tools, data, information, drawings, models, designs, algorithms, methods, documents, and fixed works resulting from or related to the activities performed by any of them under this Agreement or any Order Form (collectively, “Foreground IP”), hereby do and shall belong exclusively to PRN and, to the extent that by operation of law or otherwise such Foreground IP is not owned by PRN, Client hereby irrevocably assigns, sells, conveys, transfers, and agrees to deliver to PRN all right, title, and interest in all Foreground IP that Client may have acquired or may acquire by operation of law or otherwise, including without limitation the ownership of, or if applicable copyright in, the Foreground IP. PRN Background IP and Foreground IP are referred to as, collectively, “PRN IP.” Client agrees to give PRN or its designees all assistance reasonably requested to perfect such rights. Client represents and warrants that all Client personnel, with respect to their work under this Agreement, have executed or will execute agreements to effect the assignment of Foreground IP to PRN as the sole owner of all right, title, and interest in, to and under any and all inventions and discoveries, whether or not patentable, made during such work. For the avoidance of doubt and without limiting the generality of the foregoing, PRN shall retain all rights, title, and interest in the DoseSpot Technology, including the Custom Portal, and whether made by either Party or jointly, any modifications, improvements, configurations or customizations made thereto, and any upgrades, updates or documentation provided to Client.
10.3 No Data Backup. The DoseSpot Platform does not replace the need for Client to maintain regular data backups or redundant data archives, including with respect to medical records. PRN DOES NOT HAVE ANY OBLIGATION OR LIABILITY FOR ANY LOSS ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF ANY OF CLIENT’S MATERIALS (INCLUDING MEDICAL RECORDS) INPUT INTO, MAINTAINED BY OR OTHERWISE AVAILABLE ON OR VIA THE DOSESPOT PLATFORM.
10.4 Further Assurances. Client hereby agrees to cause each of its Related Parties to grant, convey and assign to PRN, by execution of separate instruments of assignment, all of their respective worldwide right, title, and interest in and to any Foreground IP as is necessary for PRN to fulfill its responsibilities under this Agreement. Client agrees to make available to PRN or such persons as it designates for interviews and/or testimony to assist in good faith with further prosecution, maintenance, or litigation with respect to intellectual property, including the signing of related documents. Any actual and reasonable out-of-pocket expenses associated with such assistance shall be borne by PRN, expressly excluding the value of the time of current Client employees giving assistance; provided, however, that in the case of assistance with litigation, the Parties shall agree on a case-by-case basis on compensation, if any, for the value of the time of such employees as reasonably required in connection with such litigation.
10.5 Ownership. Client hereby irrevocably transfers and assigns to PRN any and all of Client’s right, title, and interest in and to all Foreground IP. Foreground IP is hereby the sole property of PRN, and PRN has the sole right to determine its treatment. Client represents, warrants, and covenants to: (a) promptly disclose in writing to PRN all Foreground IP; (b) cooperatively assist PRN in applying for, and execute any applications and/or assignments useful or necessary to obtain, any patent, copyright, trademark, or other protection for Foreground IP in PRN’s name as PRN deems appropriate; and (c) otherwise treat all Foreground IP as Confidential Information of PRN.
10.6 Feedback. If Client provides suggestions or comments regarding enhancements or functionality or other feedback with respect to PRN’s products and/or services, including the Custom Portal, any Integrations or APIs, SDKs, etc., or otherwise (collectively, “Feedback”), PRN will have the full, unencumbered right, without any obligation to compensate or reimburse Client, to incorporate such Feedback in its products or services, or otherwise modify, develop, or enhance its products or services or create new products or services based on such Feedback, and to fully develop, commercialize and exploit such resulting products and services.
10.7 Client Modifications. Client shall not modify, change, disable, or otherwise alter any aspect of the Licensed Technology, including the Custom Portal (a “Client Modification”), without PRN’s express prior written consent. As appropriate with respect to any such Client Modification, PRN will provide advance written notice to, and seek certification from, Surescripts.
10.8 Negative Covenant. Client acknowledges PRN’s exclusive rights in the DoseSpot Technology, that the DoseSpot Technology is unique and original to PRN, and that PRN is the owner thereof. Unless otherwise permitted by law, Client shall not, at any time during or after the Term, dispute or contest, directly or indirectly, PRN IP, including PRN’s exclusive right and title to the DoseSpot Technology, including the Custom Portal, and to any modifications, improvements, configurations or customizations made thereto, and any upgrades, updates or documentation. Client shall not dispute or contest, directly or indirectly, the validity of any PRN IP. If Client does dispute or contest such intellectual property rights, in addition to any other rights and remedies PRN may have, PRN may terminate this Agreement and all licenses granted hereunder.
10.9 Indemnification. By PRN. PRN will indemnify, defend and hold harmless Client from all damages, losses, costs and expenses (collectively “Damages”) required to be paid by Client to an unaffiliated third party as a result of any claim, demand, suit or action (each a “Claim”) by such unaffiliated third party alleging that Client’s use of the DoseSpot Technology infringes the intellectual property rights of such third party, except that PRN will have no indemnification obligation with respect to any infringement resulting from the combination of the DoseSpot Technology with other products or services not provided by PRN or resulting from Client misuse of the DoseSpot Technology. If the DoseSpot Technology is, or in PRN’s determination is likely to be, subject to any such Claim regarding intellectual property rights, or if Client’s or any Client user’s use of the DoseSpot Technology is enjoined or threatened to be enjoined, PRN may, at its option and as its sole remedy (a) obtain the right for Client or such Client user(s) to continue to use the DoseSpot Technology materially as contemplated by this Agreement, (b) modify or replace the DoseSpot Technology so as to make it non-infringing, or (c) if neither (a) nor (b) is commercially feasible, terminate this Agreement or Order Form with respect to all or the affected part of the DoseSpot Technology, in which event Client shall immediately cease use of the DoseSpot Technology or affected part thereof and shall be entitled to a pro rata refund of the fees attributable to the portion of the then-current Order Form Subscription Term, as applicable, remaining immediately prior to such termination. By Client. Client will indemnify, defend and hold harmless PRN from all Damages required to be paid by PRN as a result of (a) any Claim that arises out of any use of the DoseSpot Technology other than as expressly provided under this Agreement, or (b) as a result of Client’s breach of its obligations under the Business Associate Agreement or Sub-Business Associate Agreement between the Parties, whichever applies. Procedures. If either Party intends to claim indemnification hereunder with respect to Damages arising from a Claim, then such Party (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing of such Claim after the Indemnified Party becomes aware thereof, and the Indemnifying Party shall assume the defense of such Claim and shall have the sole right to control the defense and settlement of such Claim. The Indemnifying Party shall have no obligation to indemnify the Indemnified Party for any Damages paid in settlement of any Claim if such settlement is effected without the consent of the Indemnifying Party. The Indemnified Party’s delay in delivering prompt written notice to the Indemnifying Party after becoming aware of such Claim shall relieve the Indemnifying Party of liability under this Section 10.9 to the extent that such failure increases the Indemnifying Party’s liability hereunder. The Indemnified Party shall cooperate fully with the Indemnifying Party and its legal Representatives in the investigation and defense of any matter covered by this indemnification, and the Indemnified Party may engage counsel to represent it at its sole cost and expense in connection therewith.
11. Limitation of Liability
11.1 EXCLUSIONS. CLIENT ACKNOWLEDGES AND AGREES THAT THE FEES CHARGED BY PRN UNDER THIS AGREEMENT DO NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY PRN OF, OR CALCULATION WITH RESPECT TO, THE RISK OF CLIENT’S CONSEQUENTIAL OR INCIDENTAL DAMAGES OR OF UNLIMITED DIRECT DAMAGES. ACCORDINGLY, PRN SHALL HAVE NO LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER LEGAL THEORY, FOR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 LIMIT. EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, IN NO EVENT SHALL PRN BE LIABLE TO CLIENT FOR CUMULATIVE DIRECT DAMAGES IN ANY AMOUNT GREATER THAN FEES ACTUALLY PAID OR DUE AND PAYABLE BY CLIENT TO PRN UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE CAUSE OF ACTION.
12. Term and Termination
12.1 Agreement Term. This Agreement is effective as of the Agreement Date and continues until it is terminated in accordance with this Section 12 (the “Term”).
12.2 Subscription Term. Each Subscription Term will continue for the period set forth in the applicable Order Form and, thereafter, will automatically renew for successive one (1) year Renewal Subscription Terms unless either Party delivers to the other Party written notice of non-renewal at least thirty (30) days’ prior to the end of the then-current Subscription Term or this Agreement and/or the applicable Order Form is otherwise terminated in accordance with this Section 12.
12.3 Termination for Cause. In addition to any other remedies it may have, either Party may terminate this Agreement and/or any Order Form upon written notice if the other Party materially breaches this Agreement or such Order Form, respectively, and fails to cure such breach within thirty (30) days of receipt of written notice specifying the alleged breach.
12.4 Termination by PRN. Notwithstanding the foregoing or any other provision of this Agreement, PRN may terminate this Agreement and/or the applicable Order Form immediately upon providing written notice to Client (a) for Client’s nonpayment of any amounts due and payable under this Agreement or such Order Form; (b) for any breach or violation by Client or a Prescriber End User of Section 3.2 (Restrictions) or the Surescripts Requirements set forth on Exhibit B; or (c) for Client’s violation of PRN’s rights under Section 10 (Intellectual Property).
12.5 Termination by Client. If PRN notifies Client of an increase in User Fees or other fees and charges under this Agreement for a Renewal Subscription Term in an amount greater than (a) five percent (5%), or (b) the increase in the Consumer Pricing Index for the prior twelve (12)-month period, whichever is greater, Client may terminate this Agreement upon providing written notice to PRN the later of (a) fifteen (15) days after the date of PRN’s price-increase notice, and (b) thirty (30) days prior to the end of the current Term.
12.6 Termination for Insolvency. This Agreement may be terminated by either Party immediately upon written notice if the other Party (a) becomes the subject of any proceeding relating to insolvency, receivership or liquidation; (b) files a petition in bankruptcy; or has filed against it a petition in bankruptcy which is not discharged within ninety (90) days thereof; (c) makes an assignment for the benefit of its creditors; or (d) admits in writing its inability to pay debts as they become due. In the event a Party becomes the subject of any bankruptcy proceeding, the other Party shall be entitled to the benefits afforded a licensee of intellectual property pursuant to the provisions of 11 USC Sec. 365(n).
12.7 Termination for Non-Certification. This Agreement may be terminated by either Party immediately upon written notice to the other Party in the event of a failure to complete Certification within one hundred twenty (120) calendar days after the Agreement Date.
12.8 Termination for Convenience. If there are no Order Forms then in effect, either Party may terminate this Agreement upon thirty (30) days prior written notice to the other Party.
12.9 No Election of Remedies. The election by PRN to terminate this Agreement or any Order Form shall not be deemed an election of remedies, and all other remedies provided by this Agreement or available in law or equity shall survive termination.
12.10 Survival. Client’s obligations to make any payments that have been earned or accrued through the effective date of termination of this Agreement or an Order Form shall nonetheless remain payable. The Cover Page, all defined terms;, and Sections 5, 6, 7.3, 7.4, 7.5, 9, 10, 11, 12, 13 and 14 shall survive any termination or expiration of this Agreement.
13.1 Press Release. The Parties may announce this Agreement in a mutually approved press release (which may be issued jointly or by PRN), which approval may not be unreasonably withheld, conditioned, or delayed. PRN may list Client’s name and logo as a customer on its website and in other promotional materials.
13.2 Trademarks. Client may include in all of its advertising and promotional materials the PRN and/or DoseSpot logos and an objective statement that it uses the DoseSpot™ Platform. PRN may include in its advertising and promotional materials a statement that Client is an authorized user of the DoseSpot Platform. In each case, each Party shall adhere to the trademark and branding guidelines made available to it in writing by the other Party (which may be via a webpage), as such guidelines may be updated from time. Each Party agrees that the use of the other Party’s trademarks inures to such other Party’s benefit.
14.1 Notices. All notices under this Agreement must be in writing and in the English language, and shall be deemed effectively given (a) upon personal delivery when hand-delivered to the Party to be notified; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (c) one (1) business day after deposit with a nationally recognized overnight courier, with written verification of receipt. Notices must be sent to the addresses set forth on the Cover Page. Either Party may amend its address upon written notice to the other. A copy of every notice to PRN must be emailed to Contracts@DoseSpot.com concurrently for notice sent by any other means to be valid, email notice being a necessary but not sufficient component of valid notice to PRN (that is, email alone shall not be deemed sufficient or valid notice to PRN). Email to Client is not necessary for notice by other means to be valid.
14.2 Assignment. This Agreement may not be assigned by Client without the express written consent of PRN; provided, however that Client may assign this Agreement to a third party purchasing all or substantially all of Client’s equity interests or assets via acquisition or merger without PRN’s written consent provided that Client provides written notice of such acquisition or merger to PRN as soon a reasonably practical in anticipation of or upon the Closing of such acquisition or merger. Any purported assignment or transfer or delegation of rights or obligations under this Agreement in violation of this paragraph will be null and void. Subject to the foregoing, this Agreement will be binding upon each Party and its successors and permitted assigns.
14.3 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the law of the Commonwealth of Massachusetts without regard to anything that would require the application of the law of any other jurisdiction. Any and all disputes hereunder, other than PRN’s claims for (a) nonpayment of User Fees, Certification Fees or other fees and charges due under this Agreement; (b) breach of intellectual property provisions; (c) breach of data privacy / HIPAA; or (d) violation of Applicable Law shall be brought within one (1) year of the date on which the Party becomes aware of any such action or claim or shall otherwise be fully and completely waived. Any and all disputes arising out of or relating to this Agreement shall be finally resolved by arbitration in accordance with JAMS Arbitration Rules then currently in effect, by one independent arbitrator. If the Parties fail to agree on the arbitrator within fifteen (15) days of commencement of the arbitration, then the Parties will allow JAMS to select the neutral arbitrator pursuant to its rules then currently in effect. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C., §§1 et seq. and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The place of arbitration shall be Boston, Massachusetts. Each Party is required to continue to perform its obligations under this Agreement pending final resolution of any disputes arising out of or relating to this Agreement, unless to do so would be impossible or impracticable under the circumstances. Nothing in this Agreement shall prohibit a Party from instituting litigation to enforce any final determination by the arbitrator in any state or federal court in the Commonwealth of Massachusetts.
14.4 Injunctive and Equitable Relief. Notwithstanding Section 14.3, nothing in this Agreement is intended to prevent PRN from obtaining equitable or injunctive relief in any court of competent jurisdiction. Client represents and agrees that, without limitation, the following would cause irreparable harm to PRN, monetary damages alone would be inadequate as a remedy, the balance of hardships weighs in favor of PRN, and granting equitable or injunctive relief therefore would be appropriate: any breach or anticipatory breach of Client’s obligations to PRN under this Agreement or any agreement with respect to (a) confidentiality and non-use of PRN’s Confidential Information; (b) non-solicitation; (c) non-disparagement; and (d) intellectual property, including infringement, inducement, misappropriation, and misuse.
14.5 Remedies. Except as expressly stated herein: (a) each Party’s rights and remedies shall be cumulative, not alternative; (b) If any action is necessary to enforce the terms of this Agreement, the substantially prevailing Party will be entitled to reasonable attorneys’ fees, costs, and expenses in addition to any other relief to which such prevailing Party may be entitled to attorneys’ and expert witness fees; and (c) PRN will have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief without prejudice to any other rights and remedies that PRN may have for a breach of this Agreement.
14.6 Audit.During the Term and for five (5) years thereafter, (a) Client shall maintain complete and accurate records with respect to the Services and all data needed to confirm Client’s compliance with this Agreement, including without limitation to verify amounts to be paid to PRN, and (b) PRN will have the right, itself or through an independent auditor selected by PRN, to audit Client’s books and records and the facilities of Client (each, an “Audit”) to confirm Client’s compliance with this Agreement. PRN must give Client reasonable advance notice prior to the date of each Audit. Client shall cooperate with PRN and each auditor in the conduct of each Audit and provide full access to facilities, personnel, and information needed to complete each Audit. If any Audit reveals that Client has underpaid PRN by five percent (5%) or more in any month or has otherwise failed to comply with its obligations under this Agreement in any material respect, Client shall promptly reimburse PRN for all reasonable costs and expenses incurred by PRN in connection with such Audit and pay PRN any amounts shown by any such Audit to be owing plus the lesser of two percent (2%) interest compounding monthly or the maximum interest allowed by law.
14.7 Interpretation. For purposes of this Agreement: (a) titles and headings are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement; (b) the words “includes,” “including,” “for example,” “e.g.,” “etc.,” “such as,” “for instance,” and “in particular” shall be not construed to exclude any other thing not referred to or described; provided that when combined with “only” (such as “include(s) only”, “only including”) such words shall be construed with limitation; (c) “A or B” means “A or B or both”; “either A or B” means “A or B, but not both”; and “A and B” means “both A and B”; (d) the definition given for any term shall apply equally to both the singular and plural forms of the term defined; and (e) unless the context otherwise requires, (1) references to a Section refer to a Section of these Terms of Service; (2) references to an agreement, instrument or other document (including this Agreement) mean such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (3) references to a statute means such statute as amended from time to time and includes any successor legislation thereto and any rules and regulations promulgated thereunder.
14.8 Severability. If any phrase or provision hereof is held by a court of competent jurisdiction to be invalid, unlawful, void, or unenforceable, to any extent, the remainder of this Agreement shall remain in full force and effect and such provision shall be deemed modified to be valid and enforceable to the maximum extent permitted by law.
14.9 Even-Handed Construction. The terms and conditions as set forth in this Agreement have been arrived at after mutual negotiation, and both Parties participated and had the opportunity to participate in drafting this Agreement being fully advised by their respective legal counsel and other advisors. It is the intention of the Parties that this Agreement not be construed against any Party merely because it was prepared by one of the Parties, and no ambiguity shall be construed against a Party based upon a claim that it drafted the language at issue. Each of the Parties acknowledges, represents, and agrees that it (a) has read this Agreement, (b) fully understand its terms; (c) has had the opportunity to be fully advised by its legal counsel and any other advisors; and (d) has executed this Agreement after sufficient review and understanding of its contents.
14.10 Entire Agreement. This Agreement states the entire agreement between the Parties relating to its subject matter and supersedes all prior and contemporaneous agreements, understandings, and communications, whether written or oral, between the Parties relating thereto, excluding (a) the Business Associate Agreement or Sub-Business Associate Agreement between the Parties, whichever applies, and (b) except as expressly set forth herein, any Non-Disclosure Agreement (the “NDA”) between the Parties with respect to information disclosed prior to the Agreement Date under such NDA. Any of Client’s terms and provisions included on or attached to any purchase order or invoice will be void and will have no legal effect to the extent they are inconsistent with or in addition to the provisions of this Agreement, and such Client-provided terms and provisions will not be binding on PRN.
14.11 Waiver; Amendment. All waivers must be in writing and signed by an authorized representative of the Party to be charged. The failure of a Party to require or enforce any provision or right hereunder, or a Party’s waiver of any breach of this Agreement, shall not act as a bar to subsequent requirement or enforcement of such provision or right or be deemed a waiver of any other breach.
Except as the Superscripts agreement with PRN may be modified, this Agreement may not be amended, modified, altered, or supplemented other than by a writing signed and delivered on behalf of both Parties.
14.12 Due Authority. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each Party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder have been duly authorized and that this Agreement is a valid and legal agreement binding on such Party and enforceable in accordance with its terms.
14.13 Counterparts. This Agreement may be executed in any number of counterparts and transmitted by PDF or other electronic format, each of which when so executed and duly delivered will be deemed an original for all purposes, and all of which together shall constitute one and the same agreement.
Call DoseSpot with any questions (888) 847-6814 or email: firstname.lastname@example.org