Last Updated December 7, 2020
ARTICLE 1 – DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Content” means the applicable Service’s documentation, usage guides and policies, as updated from time to time by Prescryptive, together with any information obtained by Prescryptive from publicly available sources or its third-party content providers and made available to you through the Services.
“Customer Agreement” means the form of agreement, in such form as determined by Prescryptive, that Prescryptive or one of its Affiliates enters into with Customer to grant Customer a right to the applicable Services.
“Customer Data” means electronic data and information submitted by or for you to Prescryptive for or through the use of the Services, excluding Prescryptive’s Confidential Information.
“High-Risk Use” means any use of the Services in which a service interruption, defect, error or other failure could result in the death or serious bodily injury of any person.
“Non-Prescryptive Product” means any third-party products, services, data, and web-based, mobile or offline software functionality that: (1) interoperates with a Service ; or (2) is provided by you or a third party.
“Prescryptive” means Prescryptive Health, Inc. and its Affiliates.
“Services” means the software, systems, products and services made available by Prescryptive under the applicable Customer Agreement and that are accessed and used by you and/or your Users. Except as agreed in writing by Prescryptive, Services exclude Content and any online, mobile offline or other software application functionality or services that (1) interoperates with the Services, or (2) is provided by you or a third party. Prescryptive may make changes to its Services without notice, provided that such changes do not materially alter any of the provisions of the applicable Customer Agreement. In the event of a change in applicable law or a material change in industry practices which in the reasonable opinion of Prescryptive’s legal counsel effectively prohibits Prescryptive from providing any individual or collective Services, Prescryptive shall be entitled to, in its sole discretion, suspend all or part of the Services.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by you to use a Service, for whom you have purchased a subscription license (or in the case of any Services provided by Prescryptive without charge, for whom a Service has been provisioned), and to whom you (or, when applicable, Prescryptive at your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and your agents and third parties with which you transact business for whom you have purchased the required subscription license under a Customer Agreement.
ARTICLE 2 – YOUR responsibilities
Section 2.03. Your Systems. You shall be solely responsible for any costs incurred in connection with modifications or enhancements to your systems necessary for your use of the Services. You are responsible for obtaining, installing, maintaining and operating all software, hardware or other equipment (collectively, “Systems”) necessary for you to access and use the Services. This responsibility includes, without limitation, your utilizing up to date web-browsers and the best commercially available encryption, antivirus, anti-spyware, and internet security software. You are additionally responsible for obtaining Internet services via the Internet service provider of your choice, for any and all fees imposed by such Internet service provider and any associated communications service provider charges. You acknowledge that there is certain security, corruption, transmission error, and access availability risks associated with using open networks such as the Internet, and you hereby expressly assume such risks. You acknowledge that you are responsible for the data security of the Systems used to access the Services, and for the transmission and receipt of information using such Systems. You acknowledge that you have requested access to the Services for your convenience, have made your own independent assessment of the adequacy of the Internet and Systems, and that you are satisfied with that assessment. We are not responsible for any errors or problems that arise from the malfunction or failure of the Internet or your System.
Section 2.06. Accuracy of Information. All data and information provided by you or your representatives to Prescryptive shall be correct and complete in all respects, and in the proper format specified by Prescryptive. You agree that Prescryptive shall be entitled to rely on the accuracy and completeness of such data and information for the purpose of providing the Services and fulfilling its obligations. You are solely responsible for any errors in the data and information you provide to Prescryptive, and Prescryptive shall not be liable for any incorrect or untimely data or information provided by you or your representatives.
Section 2.07. Login Credentials. You shall: (a) require that each User use only the unique login credentials assigned to such User for accessing the Services; (b) maintain a current directory of authorized Users; and (c) protect and cause to be protected the confidentiality of all login credentials.
ARTICLE 3 -Wireless phone policy, electronic communications & Signature
Section 3.01. Your Consent. By providing Prescryptive your wireless phone number, you expressly consent to Prescryptive calling you at this phone number, in person or through an automated system. You certify that you provided Prescryptive your own information and give permission to be contacted at the email address and/or phone number provided by autodialed calls/text messages and/or pre-recorded messages, regardless of your status on any State or Federal Do Not Call list. You understand consent is not a condition of purchase. However, withholding or revoking your consent may prevent Prescryptive from effectively providing you access to, or supporting your use of, the Services that rely on contacting you using your email or phone number. Messaging and data rates may apply from your mobile carrier.
Section 3.02. Electronic Communications and Signature. Accessing the Services, sending Prescryptive emails or texts, completing online forms, and other communications using your computer or mobile devices constitute electronic communications. You consent to receive all communications from Prescryptive electronically. You agree that all agreements and consents can be signed electronically, and that all notices, disclosures, orders, records and other communications that we provide you electronically satisfy any legal requirements that such notices, communications, records or consents be in writing. To the extent allowed by law, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
ARTICLE 4 – Non-Prescryptive Products
Section 4.01. Your Use. Any acquisition or use of Non-Prescryptive Products by you and your Users, and any exchange of data between you and any Non-Prescryptive Product provider, product or service is solely between you and the applicable Non-Prescryptive provider. You shall be solely responsible for acquiring, operating and maintaining all Non-Prescryptive Products with respect to your use of the Services. Prescryptive does not warrant or support non-Prescryptive Products whether or not they are designated as “certified” or otherwise. Prescryptive is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Prescryptive Product or its provider.
Section 4.02. Integration with Non-Prescryptive Products. The Services may contain features designed to interoperate with Non-Prescryptive Products. Prescryptive cannot guarantee the continued availability of such Service features, and may cease providing them without entitling you to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Prescryptive Product ceases to make the Non-Prescryptive Product available for interoperation with the corresponding Service features in a manner acceptable to Prescryptive.
ARTICLE 5 – prorprietary rights and licenses
Section 5.03. Customer’s License to Use Feedback. You grant to Prescryptive and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your Users relating to the design, provision or operation of the Services or Content.
ARTICLE 6 – HIPAA Business Associate Agreement
ARTICLE 7 – REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
Section 7.01. Warranty of Free or Trial Services. NOTWITHSTANDING ANYTHING TO CONTRARY UNDER THIS AGREEMENT OR APPLICABLE ADDENDA, AMENDMENT OR SERVICE AGREEMENT, ANY SERVICES PROVIDED FOR FREE OR UNDER A FREE TRIAL ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND PRESCRYPTIVE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES AT ANY TIME UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE PRESCRYPTIVE’S LIABILITY WITH RESECT TO THE SERVICES PROVIDED DURING THE FREE OR TRAIL PERIOD SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, PRESCRYPTIVE AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO PRESCRYPTVE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
Section 7.02. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
ARTICLE 8 – liability and indemnification
ARTICLE 9 – DISPUTE RESOLUTION
Section 9.02. Informal Good Faith Negotiations. To promote the efficient resolution of any Dispute, the parties shall first consult and negotiate with each other and attempt in good faith to reach a settlement satisfactory to both parties. Either party may initiate such good faith negotiations by contacting the other in writing and describing the nature of the Dispute and suggesting a possible resolution. The parties then have fifteen (15) business days to negotiate and resolve the Dispute amicably. If they are able to do so, such resolution shall be recorded in a writing that is signed by both parties and such writing shall be final, binding and conclusive upon the Parties. If the parties are unable to resolve the Dispute within those 15 business days, either party may continue the dispute resolution process in accordance with Section 9.03 (Notice of Dispute and Demand for Executive Officers Meeting) below but may do so only after the expiration of that 15-day period.
Section 9.03. Notice of Dispute and Demand for Executive Officers Meeting. In the event the parties are unable to resolve a Dispute through informal negotiations pursuant to Section 9.02 (Informal Good Faith Negotiations) above, the party that wishes to continue the dispute resolution process (hereinafter “Claimant”) shall so notify the other party in writing (hereinafter “Respondent”) and demand a meeting regarding the Dispute (“Dispute Notice”), to be attended by executive officers of each party, who shall meet and confer in good faith to resolve the Dispute. The meeting shall be held in-person at Claimant’s principal place of business (or other location as agreed by the parties) and shall take place within fifteen (15) business days of the date of the Dispute Notice. The parties shall have fifteen (15) business days following the executive officers meeting to continue negotiations and resolve the Dispute. If they are able to do so, such resolution shall be recorded in a writing that is signed by both parties and such writing shall be final, binding and conclusive upon the Parties. If the parties are unable to resolve the Dispute within 15 business days after the executive officers meeting, either party may continue the dispute resolution process in accordance with Section 9.05 (Binding Arbitration) below but may do so only after the expiration of that 15-day period.
Section 9.04. Condition Precedent. The parties’ attendance at and participation in good faith negotiations at the executive officers meeting shall be a condition precedent to the filing of any arbitration demand. If the Claimant fails to appear for negotiations at the executive officers meeting, the Claimant shall forfeit its claim(s) and waive all rights to pursue such claims in arbitration or otherwise. If the Respondent fails to appear for negotiations at the executive officers meeting, the Respondent shall forfeit its defenses to Claimant’s claim(s) and waive all rights to present such defenses in arbitration or otherwise.
Section 9.07. Time Bar. Any demand for arbitration shall be made within a reasonable time after the Dispute has arisen, and in no event shall it be made after two (2) years from when the aggrieved party knew or should have known of the facts underlying the Dispute. This two-year limitation period shall be tolled from the date of the Dispute Notice required under Section 9.02 (Informal Good Faith Negotiation) through the end of the 15-day period following the mandatory executive officers meeting required under that same Section 9.02.
Section 9.08. Confidentiality Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the parties.
ARTICLE 10 – Term and Termination
Section 10.02. Effect of Termination.
ARTICLE 11 – General Provisions
Section 11.02. Notices You agree that Prescryptive may provide you with information and notices about the Services electronically, including via email, through a portal for Service administration, or through a web site identified by Prescryptive. Notice is given as of the date it is made available by Prescryptive. Any other notice required or permitted shall be given in accordance with the applicable Customer Agreement.
Section 11.06. Intellectual Property. Except as otherwise agreed to in writing, Prescryptive retains all rights, title, interest in and reserves the right to use and control the use of its intellectual property rights in its assets including, but not limited to, its software, reporting packages, user documentation, operations, procedures, and trademarks and service marks. You agree not to use any such items except as expressly authorized by Prescryptive in writing.
Section 11.07. Rights and Remedies. No right or remedy contained herein is intended to be exclusive of any other right or remedy contained herein or provided by Law, and every such right or remedy shall be cumulative and not alternative.