THESE TERMS TAKE EFFECT WHEN YOU ACCESS OR USE THE SERVICE OR DOWNLOAD, INSTALL OR USE THE LICENSED SOFTWARE (THE “EFFECTIVE DATE”). BY ACCESSING OR USING THE SERVICE, OR BY DOWNLOADING, INSTALLING OR USING THE LICENSED SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS AND, IF ENTERING INTO THESE TERMS FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE OR DOWNLOAD, INSTALL OR USE THE LICENSED SOFTWARE. YOU MAY NOT ACCESS THE SERVICE OR THE LICENSED SOFTWARE IF YOU ARE A COMPETITOR OF HOMEMEDS, EXCEPT WITH OUR PRIOR WRITTEN CONSENT.
1. Application License and Hosting
1.1 License. Subject to the terms of this Agreement, Partners grants to Client a non-exclusive, non-transferable license to use the Application for its internal use only for the purpose of providing medical risk-screening for Client’s patients. The Application will only be made available as Software for a Service and hosted by Partners, or a third party selected from time to time by Partners in its sole discretion. Additional services and corresponding fees may be provided and charged, including training, hosting, technical support, maintenance, and/or pharmacy consulting related and as a compliment component to the use of the Application.
1.2 Usage Limitations. Client’s right to use the Application shall be determined by applicable tiers based on either a range of active user accounts and/or patient record levels. Client acknowledges and agrees to pay all applicable fees based on each period’s level of user accounts and/or patient record level activities. Partners reserves the right to monitor and/or audit the usage of the Application by Client at any time, and Client agrees to reimburse Partners for any additional fees owed.
1.3 Disclaimer. Client acknowledges and agrees that the Application may be inaccessible or inoperable at any time and for any reason, including without limitation scheduled maintenance, equipment malfunctions, unscheduled maintenance, or repairs, or causes that are beyond Partners’ reasonable control or not reasonably foreseeable by Partners, including without limitation interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.
1.4 Restrictions. As a participant in a hosted service, Client will not receive a copy of the Application and shall not, and shall not permit any third party to do any of the following: (i) modify, alter, create derivative works of or use the Application; (ii) decompile, reverse engineer, disassemble or otherwise determine or attempt to determine source code (or the underlying ideas, algorithms, structure or organization) of any object code contained in the Application; (iii) market, resell, distribute, reproduce, rent, lease or offer for timesharing the Application; (iv) assign, sublicense or otherwise transfer the Application or this Agreement without the prior written consent of Partners.
2.1 Application. Subject only to the limited rights expressly granted under this Agreement, Partners and/or its licensors shall retain all right, title, and interest, including all Intellectual Property Rights, in and to the Application (including, without limitation, all changes, modifications, enhancements, or corrections or additions thereto and any and all Application features/functions suggested by Client personnel). “Intellectual Property Rights” means copyright rights, trademark rights, patent rights, trade secrets, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
2.2 Data. Subject to the terms of this Agreement, Client hereby grants Partners:
(a) a worldwide, non-exclusive, royalty-free license to use, reproduce, distribute, and display all data transmitted by Client to, or otherwise generated or stored by the Application (collectively, “Client Data”) solely for the purposes of this Agreement; and
(b) a perpetual, worldwide, non-exclusive, royalty-free license to use, reproduce, display, distribute in all forms and formats now known or hereafter developed, modify, publish, translate, and make derivative works of Client Data for research and project improvement purposes only, provided that such Client Data either excludes protected health information (“PHI”), as term is defined under the Health Insurance Portability and Accountability Act of 1996 and the rules and regulations promulgated thereunder (collectively, “HIPAA”), or has been de-identified or aggregated (as defined at 45 C.F.R. § 164.514) so that no individuals are personally identifiable.
3. Client Responsibilities
3.1 Equipment and Connectivity. Client is responsible for obtaining and maintaining at its expense all the necessary computer hardware, software, modems, connections to the Internet and other items required for the access and use of the Application. The general system requirements necessary in order to access and use the Application may vary from time to time and therefore the most current requirement specifications will be provided separately as part of the new user account set up instructions.
3.2 Prohibited Activity. Client agrees that it shall not nor shall it knowingly allow its users to use or involve the Application with any action that is unlawful, or would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any Applicable Laws.
3.3 Password. Client is solely responsible for the confidentiality and use of its passwords, user names and account identifiers. In no event will Partners be liable for any loss of Client Data or other claims to the extent the same arose from unauthorized access to Client’s account by obtaining a password, username or account identifier caused by a negligent or intentional act or omission of Client or its agents.
4. Confidential information
4.1 Restrictions on Use and Disclosure. Client will hold in confidence and not use or disclose any Confidential Information of Partners and shall similarly bind its employees and independent contractors in writing. “Confidential Information” means business, technical and financial information of Partners or its subcontractors that is designated in writing as confidential or is disclosed such that a reasonable person would understand the confidentiality of the information disclosed. All software, source code, inventions, algorithms, know-how, ideas, and the terms of this Agreement are Confidential Information. Confidential Information does not include information that (i) is previously rightfully known to the receiving party without restriction on disclosure, (ii) is or becomes known to the general public, through no act or omission on the part of the receiving party, (iii) is disclosed to the receiving party by a third party without breach of any nondisclosure obligation, or (iv) is independently developed by the receiving party. If required by law, the Client may disclose Confidential Information, but must give adequate prior notice of such disclosure to the Partners to permit it to intervene and to request protective orders or other confidential treatment therefor. Under no circumstance will Client use Confidential Information to prepare to compete, compete, or induce others to compete with Partners, both during and after the term of this Agreement.
4.2 Return of Confidential Information. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to Partners, and Client will make no further use of such materials.
4.3 Relief. Money damages will not be an adequate remedy if this Section 4 is breached and, therefore, Partners may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.
5.1 Fee. Client agrees to pay Partners all applicable fees in accordance with the executed Software User Agreement between Partners Foundation and Client for the services described herein. Payments will be made quarterly in advance, or according to a schedule (e.g., semi-annually or annually) agreed upon in writing by both parties. All applicable fees are exclusive of, and Client is solely responsible for and shall pay, any sales, use and other taxes and similar charges based on or arising from the Application, any related services or products, this Agreement, or its performance, other than taxes based on Partners’ income.
5.2 Payment Terms. Partners will provide courtesy invoices to Client according to the mutually agreed upon payment schedule but Client acknowledges and agrees that at all times it is solely responsible for timely payment of all fees due by their due date. Payment is due in advance for each period. Late payments received 10 calendar days past due will be assessed a late payment fee of 10% of the outstanding amount.
5.3 Fee Increases. The fees set forth on Exhibit A may be increased, at the discretion of Partners. Partners shall notify Client in writing of any increase not later than ninety (90) days before new fees become effective. In the event Client does not desire to accept such increase, Client may elect to terminate this Agreement by providing written notice to Partners not later than thirty (30) days from receipt of notice. If Client does not provide such written notice, Client shall be deemed to have accepted such increase.
5.4 Late Fees. After ninety (90) days of due date, a late fee of $50.00 will be applied. If balance is not paid account will be escalated to enforce the suspension in Section 6.3 of this Agreement.
6. Term; Termination
6.1 Term. This agreement shall commence on the Effective Date and shall automatically renew for another one (1) year term every July 1st, unless either party provides notice to the other of its intent to amend or terminate this agreement not fewer than 90 days before the end of the then current term. Each one-year term shall hereafter be referred to as the license term (“License Term”).
6.2 Termination. Either party may terminate this Agreement by giving the other party written notice of such termination upon (i) the other party’s breach of any material term (subject to the breaching party’s right to cure within 30 days after receipt of such notice); (ii) the other party’s insolvency, making an assignment for the benefit of creditor, receivership, or the institution of any similar proceedings by or against the other party. In addition, licensee may terminate the agreement by providing at least 90 days’ written notice of its intent to cancel. No pre-paid fees will be returned. All notices must be submitted via email to both HomeMeds@picf.org and AccountsReceivable@picf.org.
6.3 Suspension. In addition to other remedies available to it, Partners may in its discretion suspend the Client’s access to the Application in the event that the Client does not pay any amount owed under this Agreement when due or Partners believes Client has violated the license conditions of this Agreement.
6.4 Events on Termination. Upon termination of this Agreement: (a) Client will promptly return all Confidential Information in its possession, custody, or control to Partners; and (b) Client will pay in full all outstanding fees. The following provisions will survive the expiration or earlier termination of this Agreement: Sections 2, 4, 5, 6.4, 7, 8 and 9.
6.5 Legal Event; Renegotiation. Notwithstanding any other provision of this Agreement, if the governmental agencies that administer the Medicare, Medicaid, or other federally funded programs (or their representatives or agents), or any other federal, state, or local governmental or nongovernmental agency, or any court or administrative tribunal, pass, issue, or promulgate any law, rule, regulation, standard, interpretation, order, decision, or judgment, including but not limited to those relating to any regulations pursuant to state or federal anti-kickback or physician self-referral statutes (collectively or individually, “Legal Event”), which, in the good-faith judgment of one party (the “Noticing Party”), materially and adversely affects either party’s licensure, accreditation, certification, or ability to refer, to accept any referral, to bill, to claim, to present a bill or claim, or to receive payment or reimbursement from any federal, state, or local governmental or nongovernmental payer, or which subjects the Noticing Party to a risk of prosecution or civil monetary penalty, or anything that adversely affects Partners’ tax-exempt status or tax-exempt bond obligations, or if in the good faith opinion of counsel to either party any term or provision of this Agreement could trigger a Legal Event, then the Noticing Party may give the other party notice of intent to amend or terminate this Agreement. In the event of such notice, the parties shall have thirty (30) days from the giving of such notice (the “Renegotiation Period”) within which to attempt to amend this Agreement. If this Agreement is not amended within the Renegotiation Period, this Agreement shall terminate as of midnight on the thirtieth (30th) day after said notice was given. Except as otherwise required by Applicable Laws, any amounts owing to either party hereunder shall be paid, or a pro rata basis, up to the date of such termination, and any obligation hereunder that is to continue beyond expiration or termination of this Agreement shall so continue pursuant to its terms.
7. Warranty; Limitation on Liability; Indemnity
7.1 DISCLAIMER. WHILE PARTNERS WILL USE COMMERCIALLY REASONABLE EFFORTS TO KEEP THE APPLICATION FREE OF DEFECTS IT DEEMS TO BE MATERIAL, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, THE APPLICATION AND ALL SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND PARTNERS DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF PARTNERS IS ADVISED OF THE PURPOSE). PARTNERS DOES NOT WARRANT THAT ACCESS TO THE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT DATA WILL NOT BE LOST. CLIENT AGREES TO HOLD PARTNERS HARMLESS FOR ANY AND ALL APPLICATION DEFECTS AND DATA LOSS (AND ANY AND ALL ASSOCIATED LOSSES OR DAMAGES).
7.2 LIMITATION OF LIABILITY. IN NO EVENT WILL PARTNERS OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 No Medical Advice. The Application does not offer medical advice and is not intended to be a substitute for professional medical advice, diagnosis or treatment. Reliance on any information provided through the Application is at Client’s own risk. Medication alerts are for informational purposes only, and are not intended to cover all possible precautions, interactions, or adverse effects. Alerts are specifically designed to present a limited subset of potential medication-related problems, i.e., only common geriatric problems most amenable to a community-based intervention and most acceptable to medical providers. Partners does not warrant the accuracy of any or all alerts. Individuals should contact their healthcare professional before starting, stopping, or changing a medication regimen. The absence of a warning regarding a given drug or drug combination should in no way be construed to indicate that the drug or drug combination is safe, effective or appropriate for any given patient or circumstance. Similarly, the lack of any alerts does not mean there are no medication-related problems. The entire monograph for a drug should be reviewed for a thorough understanding of the drug’s actions, uses and side effects. Partners does not assume any responsibility for any aspect of health care administered with the aid of the Application.
7.4 Indemnity. Client will defend, indemnify and hold Partners, its parent and subsidiary entities and its and their officers, directors, employees, agents, harmless from and against any costs, claims, damages or expenses incurred (including reasonable attorneys’ fees), and amounts awarded in a settlement or by a court arising from any third party claim or allegation arising from or in connection with the use of the Application, including, but not limited to, that Client, its employees or staff has committed medical malpractice. Partners shall give Client: (i) prompt written notice of any such claim or allegation; (ii) control of the defense and settlement thereof; and (iii) reasonable assistance in such defense or settlement at Client’s cost.
8.1 Compliance with Applicable Laws. The parties shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local governments, including laws that require the application of the laws of any other jurisdiction (collectively, “Applicable Laws”).
8.2 HIPAA Compliance. Partners is a “Business Associate” and Client is a “Covered Entity” as such terms are defined under HIPAA. Partners and Client covenant to comply with comprehensive privacy and security policies and procedures related to individually identifiable health information required by HIPAA and other related laws. Partners shall be bound by the obligations of a Business Associate, as such obligations are more specifically defined in the Business Associate Agreement attached hereto as Exhibit B.
9.1 Relationship of Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other party in any respect whatsoever.
9.2 Construction of Agreement. Both Parties acknowledge and agree that the Agreement has been jointly prepared and its provisions will not be construed more strictly against either Party as a result of its participation in such preparation. Each Party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.
9.3 Assignment. Neither Party shall assign, transfer, or sublicense any obligations or benefit under this Agreement without the written consent of the other, which shall not be unreasonably withheld or delayed, except that (i) Partners may assign this Agreement to a subsidiary entity; and (b) either party may assign this Agreement upon written notice without prior written consent to a successor in interest by way of merger, reorganization, asset sale, sale of stock, or the like. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns.
9.4 Entire Agreement. This Agreement, together with its exhibit(s), supersedes all prior agreements, and all prior and contemporary proposals and discussions relating to the subject matter of this Agreement, and controls over the preprinted terms of any purchase order or similar document.
9.5 Severability. If any provision of this Agreement is determined to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary for this Agreement to remain enforceable.
9.6 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.
9.7 Waiver and Amendment. No term or provision hereof will be considered waived by either Party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed by both Parties.
9.8 Governing Law and Venue. This Agreement shall be governed by the laws of the State of California and the venue for any action to interpret or enforce the Agreement shall be Los Angeles County, California.