Pharmacy OneSource®, Inc. (“P1S”) with its principal office at 525 Junction Road, Suite 5000, Madison, WI 53717 provides the Service (defined below) to Customer (defined below) on a subscription basis. By signing a Purchase Agreement (defined below) for Customer’s subscription for the Service, or by using the Service, Customer hereby acknowledges and accepts these Terms and Conditions of Use and agrees that these Terms and Conditions of Use are incorporated by reference into the applicable Purchase Agreement and, together with such Purchase Agreement, govern the provision and use of the Service 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. Definitions.
1.1 “Affiliate” means any other entity which, whether now or in the future, directly or indirectly, is controlled by a Party or is under common control with a Party, where control means the ability to direct the affairs of an entity through ownership of voting interest, contract rights or otherwise.
1.2 “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, or subsequent addenda or amendments hereto or thereto that are attached to or that reference the Purchase Agreement or these Terms and Conditions of Use.
1.3 “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, as set forth in the Purchase Agreement or subsequent Purchase Agreement Addenda. Applications include enhancements and updates to the Applications released during the subscription term.
1.4 “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.
1.5 “Customer” means the subscriber for use of the Service, as identified in the applicable Purchase Agreements.
1.6 “Documentation” means applicable user manuals available online through the Service to Users as updated by P1S from time to time.
1.7 “Effective Date” means the date of Customer signature on the Purchase Agreement.
1.8 “Licensed Sites” means Customer’s facility locations in the Territory, only, that are identified on the applicable Purchase Agreement.
1.9 “Purchase Agreement” means any (a) contract document (whether identified as a purchase agreement, order form, or renewal agreement) in which these Terms and Conditions of Use are incorporated by reference, identifying purchase terms specific to Customer for the Service, including but not limited to the Applications selected, the subscription term and the fees and (b) addenda to Purchase Agreements.
1.10 “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 in a Purchase Agreement and as contemplated by Section 2.3 below.
1.11 “Subscription Term Start Date” means the date designated as such on a Purchase Agreement, or if not specified, the Effective Date
1.12 “Territory” means the geographical location within which the Services and Applications may be used by Users for and on behalf of the Licensed Sites, as set forth in a Purchase Agreement.
1.13 “Third Party Providers” means third party licensors or service providers that may provide certain portions of the Service.
1.14 “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 Territory 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, 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; (viii) violate or attempt to violate or circumvent any security procedures of the Service, or interfere with or disrupt the integrity or performance of the Content or Service, or take any action compromising the enjoyment and use of the Content or Service by any other P1S customer; (ix) take any action compromising P1S’s rights in the Content or Service; or (x) submit, input, or introduce any virus, Trojan horse, worm, or other harmful component or code to the Content or Service, or any P1S system.
2.2 User Accounts. Users authorized by Customer may only use the Service. 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 and its Affiliates may subscribe for additional Applications under this Agreement subject to the payment of the applicable fees and executing a Purchase Agreement for such Applications. Each Affiliate named in a Purchase Agreement agrees to be bound by the terms and conditions of this Agreement. Customer and named Affiliates shall be jointly and severally liable for the acts of Affiliates. 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. Responsibilities.
3.1 Fees. In consideration for the right to use the Service, Customer agrees to pay P1S the fees set forth in the Purchase Agreement(s). 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 Agreement. Thereafter, P1S will invoice Customer pursuant to the payment terms set forth in the Purchase Agreement(s). Any amounts owed by Customer that are not paid when due shall be subject to late fees at a rate of the lesser of: (a) 1.5% per month, (b) the highest rate permissible under applicable law. Customer’s obligation to pay fees and all other obligations herein are absolute and unconditional and are not subject to any abatement, set-off, defense or counterclaim for any reason.
3.2 Taxes. Customer shall be responsible for all taxes, duties, fees and other governmental charges, including sales taxes, use taxes, withholding, excise, value-added 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 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 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 and/or Affiliates; (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.
3.5. Professional Services. Customer may request P1S to provide training, consulting, and/or implementation services (collectively known as “Professional Services”) in support of Customer’s subscription to use the Service for an additional fee. P1S provides Professional Services at its discretion at the then current rates charged for such Professional Services plus reasonable travel and other out of pocket expenses. Prior to delivery of any Professional Services by P1S, Customer shall execute a Purchase Agreement or statement of work (“Statement of Work” or “SOW”) and governed by the terms of this Agreement. If any Statement of Work is terminated in accordance with the termination rights in each SOW, P1S shall be entitled to all fees for the Professional Services performed prior to termination. Termination of a Statement of Work shall not affect the validity and enforceability of this Agreement.
4. Termination.
4.1 Term. 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 fees for the initial term are as set forth in this Purchase Agreement. THE FEES SHALL INCREASE FOR THE NEXT TERM AT EACH RENEWAL. P1S will give the Customer written notice of the price increase effective for the next term at Customer’s billing email address and/or other email address on file with P1S at least 90 days in advance of the end of the then current term. The initial subscription term as set forth in the Purchase Agreement SHALL AUTOMATICALLY RENEW FOR THE SAME LENGTH OF TERM AS THE INITIAL SUBSCRIPTION TERM SUBJECT TO THE FEE INCREASE ABOVE, UNLESS (A) EITHER PARTY NOTIFIES THE OTHER IN WRITING 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 (AS DESCRIBED BELOW) ON THE PURCHASE AGREEMENT For Auto-Renewal Customers, unless you cancel your subscription the fee increase will apply to your renewal term. To cancel at the end of a subscription term, Customer may either: (a) call customer service at 1-800-341-0450, or (b) send email with confirmation of receipt CSCsupport@wolterskluwer.com. to opt out of Auto-Renewal, please check the box in the customer billing section of this Agreement. Subscriptions for Customers who opt out of Auto-Renewal will expire at the end of the then current term unless Customer enters a renewal agreement with P1S
4.2 Termination by Customer. If P1S is in material breach of this Agreement and fails to remedy said breach within thirty (30) days of written notification from Customer of P1S’s breach, Customer may terminate this Agreement for material breach with respect to the affected Application(s) or, if Customer does not have a subscription for any other Applications, the entire Agreement.
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 thirty (30) 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 Termination by Either Party. Either Party may terminate this Agreement if the other party (i) files for bankruptcy relief under chapter 7 or 11 of Title 11 of the United States Code; or (ii) makes a general assignment for the benefit of creditors, and either of those circumstances remains for a period of thirty (30) days.
4.5 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.
4.6. 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.
4.7 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), 4.6 (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. Confidentiality
5.1 Nonuse and Nondisclosure. 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”).
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 Receiving Party shall not use any Confidential Information for any purpose except exercising its rights or performing its obligations under this Agreement. Except as otherwise provided herein or as expressly permitted under the Agreement, Customer and P1S agree that all Confidential Information shall be held in strict confidence by the other party and will not be made available or disclosed to any third party without the other party’s prior written consent. Each party also agrees to restrict dissemination of such Confidential Information to only those Affiliates, employees, third-party consultants, subcontractors, or service providers, who have a legitimate need to know such Confidential Information to perform the obligations or exercise the rights under this Agreement; provided that each party shall remain liable for any unauthorized use or disclosure of the other party’s Confidential Information by such third parties and are bound by similar obligations of confidentiality. Each party will afford the other party’s Confidential Information at least the same degree of care it takes in protecting its own confidential information of similar importance from unauthorized disclosure (but in no event using less than a reasonable degree of care).
5.2 Exceptions. Notwithstanding the above restrictions, neither party will have any restriction on use or disclosure of Confidential Information which (i) is now or subsequently becomes generally publicly available without any breach of this Agreement; (ii) is lawfully obtained from a third party without an obligation of confidentiality; (iii) is independently developed by such party without any use of or reliance upon any Confidential Information of the other Party; or (iv) is already lawfully in the possession of the receiving party prior to its disclosure by the disclosing party free of any obligation of confidence to the other party. 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.
5.3 Disclosure Required by Law. If the receiving party is required to disclose Confidential Information by law, by court order or by order of any governmental entity or administrative tribunal having jurisdiction over the receiving party, then the receiving party must, to the extent legally permitted, notify the disclosing party of any such requirement prior to disclosure in order to afford the disclosing party an opportunity to seek a protective order to prevent or limit disclosure, and the receiving party will reasonably cooperate with the disclosing party’s efforts to obtain such protective order. To the extent that disclosure is required or compelled, the Receiving Party will limit the disclosure to the minimum extent necessary to comply with the legal requirement, and agrees that any information so disclosed will continue to be treated as Confidential Information under this Section 5 for all other purposes.
6. Publicity.
6.1 Marketing and Publicity. The Parties agree to use reasonable efforts to mutually develop and/or perform the following marketing activities relating to Licensee’s use of the Services:
i. Issuing joint press releases and/or a written and/or audio-visual case study regarding Customer’s experience using the Services;
ii. Publishing one testimonial regarding the benefits of and experience using the Services;
iii. Requesting that Customer’s Users respond to a survey regarding their experience with the Services upon reasonable request by P1S and not more than once per year; and
iv. Customer agrees that P1S may contact Customer periodically regarding acting as a reference for the Services for other prospective customers during the term.
Neither party will publish, display, or distribute the any marketing materials or press releases that refer to the other party without prior written approval of the other party, such approval not to be unreasonably withheld or delayed. For the avoidance of doubt, nothing contained herein will prevent P1S from distributing any general marketing materials regarding the Services that do not specifically reference Customer.
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, New Applications, 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, New 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 Use of Customer Data. P1S and its affiliates, and its and their employees, agents, contractors and vendors, may process Customer Data, including but not limited to personal information, received from Customer and its Users in connection with providing the Applications and the Services to Customer, to administer Customer’s account, to respond to Customer inquiries, to communicate with Customer and its Users regarding the Applications and Services and related applications and services, to provide maintenance, support and training to Customer, to enhance the P1S Software and P1S Content, and to create new applications.
8. Third Party Software AND THIRD PARTY CONTENT.
8.1 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 to Customer that the Applications will operate in substantial conformance with the then-current Documentation for the Applications for a period of thirty (30) days following the date the Application is first delivered or made available to Customer for use. This warranty does not apply if the Application (i) has been altered or modified, except by P1S or its authorized representative, (ii) has not been operated in accordance with the Documentation, or (iii) is licensed for evaluation, testing or demonstration purposes. 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 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 effected period at no additional cost or expense to Customer, or (ii) terminate the subscription for the affected Application and refund a portion of the fee relating to the effected period for that Application.
9.3 Warranty Disclaimer. EXCEPT THE EXPRESS WARRANTY PROVIDED IN 9.1, 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 9, 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 Data Security and Disclaimers.
(a) 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 intrusions or other similar damages resulting from the method of delivery.
(b) P1S maintains commercially reasonable information security measures and policies that are appropriate to the nature of the personally identifiable information and designed to safeguard the security of Customer Data and protect against known or anticipated threats to the security of Customer Data. CUSTOMER ACKNOWLEDGES THAT SECURITY SAFEGUARDS, BY THEIR NATURE, ARE CAPABLE OF CIRCUMVENTION AND THAT P1S DOES NOT AND CANNOT GUARANTEE THAT THE SERVICES AND THE INFORMATION CONTAINED THEREIN (INCLUDING CONFIDENTIAL INFORMATION) CANNOT BE ACCESSED BY UNAUTHORIZED PERSONS CAPABLE OF OVERCOMING SUCH SAFEGUARDS. EXCEPT TO THE EXTENT DIRECTLY CAUSED BY P1S’S BREACH OF THIS SECTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, P1S SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY SUCH UNAUTHORIZED ACCESS, NOR SHALL SUCH UNAUTHORIZED ACCESS CONSTITUTE A BREACH BY P1S OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER.
(c) P1S uses commercially available software designed to detect and protect against the introduction of viruses or programming devices designed to delete, modify, damage or disable the Services or Applications. P1S and its tHIRD PARTY PROVIDERS do not represent or warrant that (A) the use of the Service 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.
9.5 Assumption of Risk; Professional Judgment. P1S DOES NOT, NOR DOES IT INTEND TO, ENGAGE IN THE PERFORMANCE OR DELIVERY OF MEDICAL OR HEALTH CARE SERVICES. 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. Customer 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. Customer 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.
9.6 Alerts. Certain Applications may provide healthcare professionals with automated referential alerts or other reference information that may relate to patients. Such alerts and reference information are automated, generalized, and not intended to diagnose patient care needs. Applications are not authorized for use in safety-critical functions (such as life support or patient monitoring) where a failure of the Application could cause or contribute to personal injury or death. Such referential alert and referential information functionality shall not be solely relied upon, requires review and independent judgment by a healthcare professional, and does not replace the direct monitoring, knowledge, experience and judgment of healthcare professionals.
10. LIMITATION OF LIABILITY.
10.1 Damages Exclusion. EXCEPT FOR CUSTOMER’S BREACH OF SECTION 2 (GRANT OF RIGHTS) AND EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY OR P1S’s AFFILIATES, DISTRIBUTORS, AGENTS, SUBCONTRACTORS, LICENSORS, SUPPLIERS, 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 or such damages were reasonably foreseeable.
10.2 Limitations of Liability. IN NO EVENT SHALL P1S’s or its AFFILIATES, DISTRIBUTORS, AGENTS, SUBCONTRACTORS, LICENSORS, SUPPLIERS, OR 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.
10.3 Bargained for Exchange. 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.
11. INDEMNIFICATION.
11.1 Indemnification. Subject to the following and to the other terms and conditions set forth in this Agreement, P1S agrees to defend Customer against any unaffiliated third party claim brought against Customer, and pay damages and reasonable costs finally assessed against Customer by a court of competent jurisdiction (or, at P1S’s option, that are included in a settlement of such claim or action in accordance herewith), to the extent such claim arises from infringement by the Services or Applications of such third party’s registered copyrights, in each case only to the extent registered prior to the date of this Agreement in the United States; provided, that (a) P1S is notified promptly in writing of the claim; (b) P1S controls the defense and settlement of the claim; (c) Customer cooperates with all reasonable requests of P1S (at P1S’s expense) in defending or settling the claim;; 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 that has not been completed or performed by P1S.
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 or in a manner not consistent with or contemplated by the Documentation; (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 any person other than WK or its authorized agent in such a way as to cause it to become infringing.
To the maximum extent permitted by applicable law, This Section 11 states the sole, exclusive and entire liability of P1S and its affiliates, distributors, agents, subcontractors and suppliers, and Customer’s sole, exclusive and entire remedy for infringement, MISAPPROPRIATION or violation of the rights of any third party.
Except with respect to claims for which Customer is entitled to indemnification pursuant to this Section 11, Customer shall indemnify and hold harmless P1S and its affiliates and their respective officers, directors, employees, contractors and agents (the “P1S Indemnities”), from and against all claims, damages, liabilities, and expenses (including attorneys’ fees) arising out of, connected with, or resulting in any way from third party claims against P1S Indemnities based on Customer’s or any of its User’s provision of medical care or pharmaceutical services.
12. Miscellaneous.
12.1 Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, is governed by and shall be governed by and enforced in accordance with the laws of the State of New York, including its statutes of limitations, without regard to any law or statutory provision which would require or permit the application of another jurisdiction’s substantive law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The courts located in New York, New York, will have exclusive jurisdiction over any dispute relating to this Agreement, and each party consents to the exclusive jurisdiction of those courts. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY, VOLUNTARILY AND UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL FOR ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT.
12.2 Injunctive Relief. Each party agrees that the other party may, in addition to any other remedies available at law, be entitled to seek immediate injunctive or other equitable relief restraining such actual or threatened breach, without the need to post any bond or show proof of any monetary damages.
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, DoseMeRx, POC Advisor, and Quantifi, Applications (“Services Involving PHI”) involve sharing or transmitting PHI. The only Applications that Customer may order under this Agreement are Simplify 797 and Simplifi + MedStorage. Customer may not order any Services Involving PHI under this Agreement, and P1S and Customer agree to execute a mutually agreeable separate purchase agreement, along with a Business Associate Agreement in the event that Customer subscribes for any Services Involving PHI. Customer acknowledges and agrees that the Simplifi 797 and Simplifi + MedStorage Applications are not intended to be used to store, record, share, access, transmit or process PHI and Customer represents and warrants that neither Customer nor any of its Users will enter, store, record or transmit, or otherwise provide, make available, submit or otherwise expose P1S to, any PHI or data that would reasonably be expected to be categorized as PHI, within or in connection with the Simplifi 797 or Simplifi + MedStorage Applications.
12.5 Anonymous Data. P1S may collect or create anonymized information that is not PHI regarding Authorized Users’ and Customer’s use of the Applications, including statistical use information, and may use PHI to create data that is de-identified in accordance with HIPAA (collectively "Anonymous Data"). P1S owns the Anonymous Data and may use and disclose it for any lawful purpose.
12.6 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 may not assign or transfer this Agreement or any rights or obligations hereunder, without the prior written consent of P1S. Any attempted assignment by Customer of this Agreement or any its rights or obligations hereunder in breach of this Section 12.6 shall be void and of no effect.
12.7 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes and extinguishes all prior and contemporaneous agreements, understandings, representations, warranties, proposals and communications, whether oral or written, between the parties relating to such subject matter. Any purchase order, requisition, request for proposal or other document or record prepared, issued or provided by or on behalf of Customer relating to the subject matter of this Agreement is for administrative convenience only and will have no effect in supplementing, varying or superseding any provisions of this Agreement, regardless of any acknowledgement thereof by P1S. For the avoidance of doubt, P1S may execute separate agreements with Customer for different products and services, which shall not supersede and replace this Agreement unless expressly stated otherwise.
12.8 Amendment, Waiver and Severability. This Agreement may not be modified or amended except by a writing signed by both parties. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. In the event that any provision of this Agreement is held to be illegal, or otherwise unenforceable, such provision will be severed, stricken and replaced with a legal and enforceable provision which most closely reflects the intent of the parties with respect thereto and the remainder of this Agreement shall continue in full force and effect.
12.9 Counterparts. This Agreement may be executed simultaneously in one or more counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. Photocopies, facsimile transmissions and other reproductions of the executed original (with reproduced signatures) will be deemed original counterparts of this Agreement. Electronic signatures and electronically transmitted documents are binding.
12.10 Notices. P1S may give notices regarding updates, maintenance, renewals, price increases and other general information about the Service 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. Each party giving or making any notice (including any request, demand or other communication) pursuant to this Agreement shall give the notice in writing, cause the notice to be signed by a person having actual signature authority for such party, and use one of the following methods of delivery: personal delivery, registered or certified mail return receipt requested and postage prepaid, or nationally recognized overnight courier with all fees prepaid. Each party giving a notice shall address the notice to the appropriate person at the receiving party as listed below. 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 53717. Any legal notices for P1S must also be sent to: EVP and General Counsel, Wolters Kluwer U.S. Corp., 28 Liberty St. 26th FL, New York, NY 10005. Notices to Customer: address as indicated in a Purchase Agreement Notice solely to the Legal Department shall not constitute valid notice under this Section 12.10. Except as provided elsewhere in this Agreement, a notice is effective only if the party giving or making the notice has complied with the provisions of this notice Section 12.10, and if the addressee of the notice has received the notice. A notice is deemed to have been received as follows: if a notice is delivered in person, or sent by Registered or Certified Mail, or nationally recognized overnight courier, upon receipt as indicated by the date on the signed receipt.
12.11 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.
12.12 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.
12.13 Independent Parties. The parties are independent contracting parties and nothing in this Agreement shall be deemed to make any party an agent, employee, or joint-venturer of another party. No party shall be entitled to any benefits that another party provides for its own employees, including, without limitation, workers’ compensation, and unemployment insurance. Each party shall have exclusive control over its own employees, agents, and subcontractors, its labor and employee relations, and its policies relating to wages, hours, working conditions or other conditions.
12.14 Force Majeure. Except for a party’s obligation to pay fees that are due, neither party will be liable for any failure or delay in performance under this Agreement for causes beyond that party’s reasonable control and occurring without that party’s fault, including but not limited to, acts of God, acts of government, flood, fire, civil unrest or war, acts of terror, labor strikes (other than those involving the party’s employees), computer attacks or malicious acts, such as attacks on or through the Internet, or failures of service of any telecommunications or Internet service carriers or providers (a “Force Majeure Event”). The party affected by the Force Majeure Event will use reasonable efforts after the start of the Force Majeure Event to notify the other party in writing of the Force Majeure Event including the likely or potential duration, if known, and the effect on its ability to perform any of its obligations under the Agreement.
12.15 No Third-Party Beneficiary. Except as otherwise expressly provided herein, no third party is intended to be nor will be a third-party beneficiary of any provision under this Agreement, and P1S and Customer will be the only parties entitled to enforce the rights and terms set out in this Agreement.
12.16 Change in Laws. In the event of the promulgation of any applicable law, rule, or regulation, or the issuance of an interpretation of any existing law, rule, or regulation that, in the good faith opinion of P1S’s counsel, could conflict with the terms of this Agreement or could otherwise have a material adverse impact on P1S and/or any of its Affiliates, the parties shall negotiate in good faith to amend this Agreement. If they are unable to mutually agree on an amendment within thirty (30) days, P1S may immediately terminate this Agreement upon written notice to Customer.
Last updated 8/3/2021.