Pharmacy OneSource, Inc. (“P1S”) with its principal office at 525 Junction Road, Suite 5000, Madison, WI 53717 provides the Services (defined below) to Customer (defined below) on a subscription basis. By Customer’s subscription for and use of the Services, Customer hereby acknowledges, accepts and agrees that these Terms and Conditions of Use are incorporated by reference in the Purchase Agreement and together with the applicable Purchase Agreement, govern the provision and use of the Services and are binding on P1S and Customer. In the event of a conflict between the Purchase Agreement and these Terms and Conditions of Use, these Terms and Conditions of Use shall control. P1S and Customer herein may each be referred to as a “Party” or together the “Parties”.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1.1 “Agreement” means these Terms and Conditions of Use together with the Purchase Agreement entered into by and between Customer and P1S in which these Terms and Conditions of Use are incorporated by reference, together with any exhibits, statements of work, subsequent addenda or amendments hereto.
1.2 “Applications” means the specific product applications and related Content made available by P1S from time to time for subscription by Customer for use through the Service.
1.3 “Content” means (a) clinical or business rules composed of criteria, parameters, operators and logic, used to generate alerts and notifications through the Service; (b) clinical decision support guidance available through the Service in the form of alerts, suggested actions, narratives, lists, tables, charts, and links; (c) training modules and competencies; (d) policies & procedures; (e) graphics, text, logos, trademarks, trade names, product names, user interface, and the overall look and feel of the Applications, and (f) third party software and third party drug mapping and healthcare terminology data.
1.4 “Customer” means the subscriber for use of the Service identified in any applicable Purchase Agreements.
1.5 “Documentation” means applicable user manuals available online through the Service to Users as updated by P1S from time to time.
1.6 “Effective Date” means the date of Customer signature on the Agreement.
1.7 “Licensed Sites” means Customer’s facility locations in the United States, only, that are identified on the applicable Purchase Agreements.
1.8 “Purchase Agreement” means the contract document (whether identified as a purchase agreement, pricing proposal, renewal agreement, or addendum) in which these Terms and Conditions of Use are incorporated by reference, identifying purchase terms specific to Customer for the Services, including but not limited to the Applications selected, the subscription term and the fees.
1.9 “Service” means an online service hosted by P1S. The Service shall consist of one or more product Applications selected and subscribed to by Customer as identified on the Agreement as contemplated by Section 2.3 below.
1.10 “Subscription Term Start Date” means the date designated as such on the Purchase Agreement, or if not specified, the Effective Date.
1.11 “Third-Party Providers” means third-party licensors or service providers that may provide certain portions of the Service.
1.12 “Users” means Customer’s (a) employees, and/or (b) clinicians, consultants, contractors or agents performing services to or on behalf of the Customer. Users must work for a Licensed Site, access the Services from within the United States via a Licensed Site, and be authorized by Customer to use the Service, including having been supplied user identifications and passwords by Customer.
2. Grant of Rights.
2.1 Rights to Use and Limitations. Subject to the terms and conditions contained herein, during the term of this Agreement, the Customer shall have a non-exclusive, revocable, non-transferable, non-sublicenseable, limited right to use the Service at the Licensed Sites for the subscription term set forth in the Purchase Agreement, as applicable, solely for its internal business purposes and for no other purposes. All rights to use the Service, Applications and Content are expressly stated herein, and P1S reserves all other rights. There is no implied right to use the Service, Applications or Content. Any breach of this Agreement by any User shall constitute a breach by the Customer. Customer and its Users shall not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or use the Service to provide services for third parties; (ii) include the Content in other software or databases, or hyperlink, index, or otherwise utilize the Content or Service by automated software means, including: search engines, robots, spiders, crawlers, data mining tools, or any other software that aggregates access to, the Service or Content, (iii) combine the Service or Content with other content in knowledge banks or through similar technologies; (iv), modify, translate, reverse engineer, disassemble, decompile, create derivative works of, copy, distribute, publish, publicly display, transmit or download for storage the Service, any Applications, or any Content obtained through the Service; (v) share, distribute, publish, or disclose any Content derived or obtained from the Service except within Customer’s Licensed Sites to the extent necessary to use the Service; (vi) use the Service or any Content in any manner that violates any applicable law; (vii) subscribe for or use the Service with the intent to build a competitive product or service, build a product or service using similar features, ideas, functions, content, or graphics, or copy any ideas, features, functions, Content or graphics of the Service; and (viii) violate or attempt to violate or circumvent any security procedures of the Service.
2.2 User Accounts. The Service may only be used by Users authorized by Customer. Customer shall register each User with P1S. P1S has the right to suspend any User’s account in its sole discretion if it reasonably suspects the User information is false or not current or for use of the Service in violation of this Agreement. User accounts cannot be “shared” or used by more than one individual.
2.3 Applications. Customer may subscribe for additional Applications under this Agreement subject to the payment of the applicable fees and entering a Purchase Agreement for such Applications. P1S reserves the right to make changes to any Application at any time that it deems necessary or useful and such changes may include the addition or removal of features.
3.1 Fees. In consideration for the right to use the Service, Customer agrees to pay P1S the fees set forth on the Agreement. All fees quoted and payments made herein shall be in US Dollars. Payment terms are net 30 days from the date of the invoice. The initial invoice will be sent to Customer promptly upon full execution of the Purchase Agreement, unless otherwise specified in the Agreement. After the initial term of the Agreement, P1S may increase the fees for each renewal term by giving Customer email notice of the fee increase at least ninety (90) days prior to the end of the then current term. Such fee increase shall be effective (a) for Customers on auto-renewal, for the next term unless Customer cancels the Agreement; or (b) for Customers that opt out of auto-renewal, upon execution of a renewal. P1S will invoice Customer pursuant to the payment terms in the applicable Purchase Agreement(s). Customer will be charged interest of 1.5% per month or the greatest amount allowable by law, whichever is less, on balances that are past due.
3.2 Taxes. Customer shall be responsible for all taxes, duties, fees and other governmental charges, including sales taxes, use taxes and any other similar taxes imposed by any federal, provincial/state or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon P1S’s gross revenues or net income. When P1S has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Customer. If Customer is tax-exempt, a valid tax exemption certificate must be provided to P1S prior to or upon execution of the Purchase Agreement. If Customer loses tax-exempt status, it shall pay any taxes due as part of any applicable renewal or payment. Customer shall promptly notify P1S if its tax status changes.
3.3 Customer Duties. The Customer agrees to and acknowledges the following regarding its use of the Service: (i) Customer is fully responsible for all activities that occur under its account, whether or not such activity is by Customer’s Users; (ii) Customer is responsible for maintaining the confidentiality of its Users’ passwords and usernames; and (iii) Customer shall immediately notify P1S of any unauthorized use of its account or any other breach of security that is known or suspected by Customer.
3.4 Minimum Software and Hardware Specifications. The Customer shall provide and maintain, at its sole cost and expense, all computers and other equipment and services (including communication lines and Internet access service) used by Customer to access the Service. P1S shall provide to Customer during implementation a description of the minimum hardware and software requirements that will be necessary for customer to use the Service on the Subscription Term Start Date, but Customer understands and agrees that the minimum requirements will likely change over time. P1S may provide updated minimum hardware and software requirements to Customer periodically during the term of the Agreement.
4. Term and Termination.
4.1 Term and Renewal. The term of this Agreement shall begin on the Subscription Term Start Date and shall continue for so long as Customer has a current subscription for Service for at least one Application under this Agreement. The initial subscription term shall be as set forth in Purchase Agreement shall automatically renew the for the same length of terms subject to the fee increase in Section 3.1 unless (a) either party notifies the other in writing of cancellation of the subscription not less than forty five (45) days in advance of the expiration of the then current term, or (b) Customer selected the option to opt out of auto-renewal on the Purchase Agreement. To cancel at the end of a subscription term, Customer may either: (a) call customer service at 1-800-341-0450, or (b) send an email with confirmation of receipt to [email protected] Subscriptions for Customers who opt out of auto-renewal on the Purchase Agreement will expire at the end of the then current term unless Customer enters a renewal agreement with P1S prior to the end of the then current term.
4.2 Termination by Customer. If P1S is in material breach of this Agreement and fails to remedy said breach within sixty (60) days of written notification from Customer of P1S’s breach, Customer may terminate this Agreement for material breach.
4.3 Termination by P1S. This Agreement may be terminated by P1S prior to its expiration thereof if any of the following events occur: (i) Customer is in material breach of any term, condition, obligation or provision of this Agreement, which breach is not cured within sixty (60) days of written notice of such breach, (ii) Customer develops, distributes, or licenses software or Content for sale to third parties that materially competes with the Service, or (iii) in the event P1S plans to or is no longer supporting an Application generally for its customers, six (6) months after giving Customer written notice of the end of support for that Application, P1S may terminate the Agreement with respect to that Application, or if Customer does not have a subscription for any other Applications, the entire Agreement.
4.4 Suspension by P1S. In addition to P1S’s right to terminate for breach, in the event of a breach of this Agreement by Customer, including but not limited to failure to timely make payments under this Agreement or unauthorized use of the Service, Application or Content, P1S reserves the right to suspend Customer’s access to the Service, and may require Customer to pay to P1S, on demand, an amount equal to the Balance Remaining in order to resume Service. For purposes of this Agreement, the term “Balance Remaining” means an amount equal to the sum of all fees and charges then due, if any, and all unpaid fees to become due in the future through the remainder of the term of this Agreement.
4.5 Effect of Termination. Upon the termination or expiration of this Agreement for any reason (i) all licenses granted hereunder shall terminate; (ii) Customer shall immediately pay to P1S all amounts due and outstanding as of the date of such termination or expiration, (iii) Customer shall return to P1S, or destroy and certify in writing the destruction of, all copies of the Content and Documentation.
4.6 Survivability. Upon termination or expiration of the term of this Agreement for any reason, and in addition to any provision that expressly survives, the provisions of Sections 3.3 (Customer Duties), 4.5 (Effect of Termination), 5 (Confidentiality), 7 (Intellectual Property), and 9-12 (Warranty and Disclaimers, Limitation of Liability, Indemnification, and Miscellaneous) shall continue and survive in full force and effect.
5.1 Definition. For the purposes of this Agreement, “Confidential Information” means information or materials disclosed or otherwise provided by a party (“Disclosing Party”) to the other party (“Receiving Party”) that are identified as confidential or proprietary, or which would ordinarily be considered confidential by a reasonable businessperson (“Confidential Information”). Confidential Information does not include that which (i) was known to the Receiving Party, without restriction and without duty of confidentiality, at the time of disclosure, as evidenced by the written records of Receiving Party, (ii) is or becomes publicly available other than as a result of any action or inaction of the Receiving Party, or (iii) is obtained by the Receiving Party from an unrelated third party who expressly represents that they are not subject to an obligation of confidentiality with respect to the Confidential Information and who is otherwise without a duty of confidentiality. Without limiting the generality of the foregoing, “Confidential Information” expressly includes the Service, Applications, Content, Documentation, fees paid or payable hereunder and the terms of this Agreement. The parties agree that Protected Health Information (“PHI”), as defined by HIPAA, shall not be deemed Confidential Information pursuant to this Agreement and that the obligations of the parties with respect to PHI, to the extent applicable, shall be solely governed by a Business Associate Agreement between the parties.
5.2 Restrictions. The Receiving Party shall not use Confidential Information of the Disclosing Party for any purpose other than the performance of this Agreement. The Receiving Party shall not disclose Confidential Information to any third parties except as otherwise permitted herein. The Receiving Party may disclose Confidential Information of the Disclosing Party only to those affiliates, employees, clinicians, contractors, agents, and consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions no less restrictive than those set forth in this Section 5 (Confidentiality). The Receiving Party shall maintain Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own Confidential Information. Upon written request the Receiving Party shall return or destroy all copies of Confidential Information.
5.3 Legal Obligation. This Agreement will not prevent the Receiving Party from disclosing Confidential Information of the Disclosing Party to the extent required by a judicial order or other legal obligation, provided that, in such event, the Receiving Party shall promptly notify the Disclosing Party to allow intervention (unless such notice is prohibited by law), and shall cooperate with the Disclosing Party to contest or minimize the scope of the disclosure (including application for a protective order). Each party shall advise the other party immediately in writing of any misappropriation or misuse of Confidential Information of the other party of which the notifying party becomes aware.
6. Publicity. P1S shall have the right to refer to Customer by its corporate name or trade name as a customer of P1S in its press releases, advertising and promotional materials. Customer shall not make statements or representations about P1S or its affiliates without the prior written consent of P1S.
7. Intellectual Property.
7.1 P1S Intellectual Property Rights. P1S owns or licenses all right, title and interest, including all intellectual property rights, in and to (i) the Service, the Applications, the Content, the Documentation, and other audio or visual information, documents, software (including object and source code) and works of authorship, (ii) the P1S name, logo, domain names, visual look and feel, product and service names associate with the Service and Applications, and other trademarks, trade dress and service marks, and (iii) technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information related to the Service, the Applications, the Content or the Documentation (collectively, the “P1S Proprietary Rights”). Customer acknowledges the Service, Applications, and Content are provided as a service and not licensed or sold to Customer and that no title or rights of ownership transfer to Customer under this Agreement. Customer shall not challenge or assist others in challenging the P1S Proprietary Rights. P1S and/or its Third Party Providers shall retain all rights not expressly granted hereunder. P1S shall further own all right, title and interest, including all related intellectual property rights, to any suggestions, ideas, feedback, recommendations, or other information provided by Customer and its Users relating to the Service, Applications, Content or Documentation (“Submissions”) and Customer hereby assigns such Submissions to P1S. P1S may use such Submissions as it deems appropriate in its sole discretion.
7.2 Collection of Information and Data Rights. P1S may collect anonymized information regarding Authorized Users’ and Customer’s use of the Applications, including statistical use information. Customer agrees that P1S owns such collected information. P1S and its affiliates, and its and their employees, agents, contractors and vendors, shall have the right to use data submitted by Customer to P1S through the Applications (“Data”) to provide the Applications and the Services to Customer, to administer Customer’s account, to respond to Customer inquiries, to improve the Applications, to develop new applications or new features or services for the Applications, to providing benchmarking services, and to provide maintenance, support and training to Customer. To the extent Data includes PHI, Customer acknowledges that P1S shall have the right to de-identify Data and to aggregate Data with the data P1S receives from other customers. P1S shall own all de-identified Data.
8. Third Party Software AND THIRD PARTY CONTENT.
Customer acknowledges that the Services, Applications and Content provided under this Agreement may include third party software and third party content subject to additional license terms from Third Party Providers. Each Third Party Provider has a proprietary interest in such software and content and is a direct and intended beneficiary of this Agreement and may enforce it directly against Customer.
9. WARRANTY AND DISCLAIMERS
9.1 Limited Warranty. P1S warrants that the Applications will substantially conform to the functionality described in the then current Documentation. P1S does not warrant that the Service will meet all of Customer’s requirements, will be error-free or will operate without interruption.
9.2 Limited Warranty Remedy. Customer’s exclusive remedy for breach of the Section 9.1 Limited Warranty contained in this section shall be a correction of any such failure to perform. If P1S is unable to correct the failure within a commercially reasonable time or if the failure substantially interferes with the Customer’s use of the Service (as determined by P1S), P1S’s shall have the option, in its sole discretion, to either (i) extend the term of any applicable subscription for the length of the affected period at no additional cost or expense to Customer, or (ii) terminate the subscription for the affected Application and refund a pro-rata portion of any prepaid subscription fees for that portion of the period covered by such pre-payment after the date of termination for that Application.
9.3 Warranty Disclaimer. P1S PROVIDES THE SERVICE, APPLICATIONS, CONTENT AND DOCUMENTATION TO CUSTOMER ON AN “AS IS” BASIS. ANY USE OF THE SERVICE, APPLICATIONS, CONTENT AND DOCUMENTATION IS AT THE CUSTOMER’S OWN RISK. P1S AND ITS THIRD PARTY PROVIDERS MAKE NO WARRANTY OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SECURITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE, APPLICATIONS OR CONTENT. OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 10, P1S MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE IN FACT OR IN LAW, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
9.4 Internet Disclaimer. The Service is being delivered via the Internet, and accordingly, is subject to limitations, delays, and other risks inherent in the use of the Internet and electronic communications. P1S IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, VIRUSES, HACKER INSTRUSIONS OR OTHER SIMILAR DAMAGES RESULTING FROM THE METHOD OF DELIVERY. P1S AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR FREE, OR (B) THE P1S SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. P1S uses industry standard techniques and procedures to attempt to prevent and detect viruses or other inappropriate or unauthorized access to and use of the P1S server platform.
9.5 Assumption of Risk; Professional Judgment. THE INFORMATION CONTAINED IN THE SERVICE IS INTENDED ONLY AS A SUPPLEMENT TO THE KNOWLEDGE AND PROFESSIONAL JUDGMENT OF PHYSICIANS, PHARMACISTS AND OTHER HEALTHCARE PROFESSIONALS. THE SERVICE IS NOT AND IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL JUDGEMENT IN PATIENT DIAGNOSIS OR TREATMENT. CUSTOMERS AND EACH USER HEREBY COVENANT AND AGREE THAT THEY SHALL USE THE HIGHEST DEGREE OF CARE WHEN USING THE RESULTS AND CONTENT OF THE SERVICE, AND SHALL ANALYZE SUCH RESULTS IN LIGHT OF ALL OF THE OTHER AVAILABLE INFORMATION BEFORE RELYING ON SUCH RESULTS AND CONTENT OR MAKING DECISIONS REGARDING PATIENT CARE. CUSTOMERS ASSUMES ALL RISK FOR THE CARE OF ITS PATIENTS WHEN USING THE SERVICE AND P1S SHALL NOT BE RESPONSIBLE FOR ANY LOSSES, INJURIES, DAMAGES OR OTHER CONSEQUENCES TO CUSTOMER OR ITS PATIENTS RESULTING FROM SUCH USE. P1S DOES NOT, NOR DOES IT INTEND TO, ENGAGE IN THE PERFORMANCE OR DELIVERY OF MEDICAL OR HEALTH CARE SERVICES.
10. LIMITATION OF LIABILITY.
EXCEPT FOR BREACHES OF SECTION(S) 2 (GRANT OF RIGHTS) or 5 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY OR THIRD PARTY PROVIDERS HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES of ANY KIND ARISING OUT OF THIS AGREEMENT AND HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF DATA, OR OTHER INDIRECT ECONOMIC DAMAGE FOR ANY CONSEQUENCES ATTRIBUTABLE TO OR RELATED TO ANY USE, MISUSE, INABILITY TO USE, ERRORS, SEQUENCING, COMPLETENESS, or ACCURACY OF DATA OF THE SERVICE OR INFORMATION CONTAINED OR NOT CONTAINED IN THE SERVICE, APPLICATIONS OR CONTENT REGARDLESS OF WHETHER THE PARTY ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL P1S’s OR IT’S THIRD PARTY PROVIDERS’ TOTAL AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT FOR ALL CLAIMS EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO P1S IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. The allocations of liability in this Section 10 represent the agreed, bargained-for understanding of the parties and P1S’s compensation hereunder reflects such allocations. The limitation of liability and types of damages stated in this Agreement are intended by the parties to apply regardless of the form of lawsuit or claim a party may bring, whether in tort, contract or otherwise, and regardless of whether any limited remedy provided for in this Agreement fails of its essential purpose.
P1S will indemnify Customer and hold Customer harmless against costs, expenses and liabilities based upon any claim by any third party that the Services, Applications or Content infringe or violate any United States copyright of such third party, provided that: (a) Customer notifies P1S promptly in writing of any notice of any such claim; (b) Customer cooperates with P1S in all reasonable respects in connection with the investigation and defense of any such claim; (c) P1S is given sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; and (d) should the Services, Applications or Content become, or in P1S’s opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, Customer will permit P1S, at P1S’s option and expense, either to: (i) procure for Customer the right to continue using the Services, or (ii) replace or modify the Services, Applications and/or Content so that they becomes non infringing, or (iii) if none of the foregoing remedies are commercially feasible, as determined in P1S’s sole discretion, terminate this Agreement and refund to Customer the pro-rata portion of any prepaid subscription fees for that portion of the period covered by such pre-payment after the date of termination.
Notwithstanding anything herein to the contrary, P1S will have no obligation or liability to Customer under this Section 11. if any otherwise covered claim is based upon: (x) use of the Services outside of the scope of rights granted under this Agreement or in violation of the terms of this Agreement; (y) use of the Services in combination with other services, software or equipment not provided by P1S where the infringement results from the combination; or (z) any Services which have been modified by or for Customer in such a way as to cause it to become infringing.
THIS SECTION 11 STATES P1S’S EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF THE RIGHTS OF ANY THIRD PARTY.
12.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to conflicts of law and excluding the United Nations Convention on Contracts for the International Sale of Goods. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE OR LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF.
12.2 Injunctive Relief. Each party acknowledges that its breach of Sections 2 (Grant of Rights) and/or 5 (Confidentiality) of this Agreement could cause irreparable harm to the other party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which it may be legally entitled, each party shall have the right to seek immediate, temporary, and permanent injunctive relief in the event of a breach of such sections by the other party or any of its officers, employees, consultants or other agents.
12.3 Compliance with Laws. Each party shall comply with any U.S. and other applicable laws and regulations applicable to the respective party.
12.4 HIPAA. Only P1S’s Sentri7, Quantifi, and MedBoard Applications (“Services Involving PHI”) involve sharing or transmitting PHI. P1S and Customer agree to execute a mutually agreeable Business Associate Agreement in the event that Customer subscribes for any Services Involving PHI. Customer agrees not to share, transfer or transmit PHI to or with P1S unless and until the parties have entered into a Business Associate Agreement. Customer acknowledges and agrees that use of the Service by Customer does not ensure Customer’s compliance with HIPAA as a covered entity. Customer is solely responsible for ensuring its own compliance with HIPAA. Customer acknowledges and agrees that the Simplifi 797 and VeriForm Applications shall not be used to store, record, share, access or transmit PHI and Customer agrees to ensure that Customer and its Users do not enter, store, record or transmit PHI within the Simplifi 797 or VeriForm Applications.
12.5 Binding Agreement; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors and permitted assigns. Customer has no right to sell, transfer, or assign this Agreement without the prior written consent of P1S, which consent will not be unreasonably withheld. Any assignment in violation of this Agreement shall be null and void. Any such permitted assignment shall not increase the scope of the rights granted hereunder. P1S may sell, assign or transfer this Agreement or any of its rights and/or obligations under this Agreement.
12.6 Entire Agreement; Amendment; Counterparts. This Agreement sets forth the entire Agreement between the parties and supersedes any and all prior proposals, quotes, agreements, and representations between them, whether written or oral. Except as expressly stated in this Agreement, any waiver, modification or amendment of any provision of this Agreement shall be effective only if in the form of a written amendment to this Agreement and signed by both parties. No terms, provisions, or conditions of any purchase order or other business form that Customer may use in connection with the acquisition or licensing of software or services will have any effect on the rights, duties or obligations of the parties under, or otherwise modify this Agreement, regardless of any failure of P1S to object to such terms, provisions or conditions. This Agreement may be executed in two or more counterparts and all counterparts so executed will for all purposes constitute one agreement, binding on all parties hereto.
12.7 Notices. P1S may give notices regarding updates, maintenance, renewals, price increases and other general information about the Services by means of a general notice via electronic mail to Customer’s administrative and/or billing e-mail address(es) on record with P1S’s account information for the Customer. Legal notices or notices specific to this Agreement from either party must be given in writing and sent by first class mail postage prepaid, or delivered by a nationally recognized delivery service to the other party’s address as indicated in a Purchase Agreement. Notices to P1S should be addressed to: Pharmacy OneSource, Inc., c/o Wolters Kluwer Health ATTN: Contract Management, 525 Junction Road, Suite 5000, Madison, WI. Any legal notices for P1S must also be sent to General Counsel, Wolters Kluwer, 28 Liberty St. 26th FL, New York, NY 10005.
12.8 Waiver. No modification, amendment or waiver of any provision of this Agreement shall be effective unless agreed to in writing and signed by both parties. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
12.9 Severability. Any provision of this Agreement held or determined by a court (or other legal authority) of competent jurisdiction to be illegal, invalid, or unenforceable in any jurisdiction shall be deemed separate, distinct and independent, and shall be removed, changed and/or interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
12.10 Independent Contractor. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose nor shall either have any right, power or authority to create any obligation or responsibility, express or implied, on behalf of the other.
12.11 Force Majeure. Each party shall be discharged of its responsibility to perform any obligation required of it hereunder, other than payment obligations, for the duration that such performance is prevented by reasons beyond the reasonable control of such party, provided the party affected gives prompt notice to the other party, uses its best efforts to avoid or remove such causes, and continues performance hereunder with all due diligence whenever such causes are removed or settled.
Last updated 4/8/2020.