Commercial terms of use

TERMS OF USE

 

Last Updated December 7, 2020

These terms and conditions of use  (the “Terms of Use”) govern your access and use the Services as authorized by Prescryptive under a Customer Agreement.  These Terms of Use also govern your access and use of any Services through any registration for free or trial use of the Services.  Your acceptance and continued compliance with these Terms of Use is a condition to your authorized access to the Services.

You acknowledge, warrant and represent that you are an authorized representative of Customer and, as such, have the requisite legal authority to accept and be bound to these Terms of Use on behalf of Customer and its Affiliates. You are accepting and agreeing to be bound by these Terms of Use by: (1) entering into a Customer Agreement accepted by Prescryptive that references these Terms of Use; (2) clicking a box indicating your acceptance before accessing the Services; or (3) using free Services.

By accessing or using the Services, you are acknowledging that you have read, understand, accept and agree to be bound by these Terms of Use, Prescryptive’s Privacy Policy, and any applicable terms and conditions provided by Prescryptive’s partners applicable to the Services.  If you do not agree to these Terms of Use, our Privacy Policy or any other policy governing your access to or use of the Services, you are not authorized to access and use the Services and must immediately terminate your access and use of the same.  If you have any questions regarding these Terms of Use or your access to or use of the Services, please submit your questions to Prescryptive via the Contact Us page available at www.prescryptive.com.

Prescryptive may modify these Terms of Use at any time by providing you notice, provided that any such modification shall not materially alter the terms of the applicable Customer Agreement.

Arbitration Notice:  These Terms of Use contain a binding arbitration agreement that includes a waiver of any right to participate in a class action lawsuit or class-wide arbitration.  See ARTICLE 9 (Dispute Resolution) below for details.

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” means the individual, on his or her own behalf, or legal entity, on behalf of itself and its Affiliates, that has accepted the terms of a Customer Agreement with Prescryptive to acquire Services for its use as an end user, and not for distribution or resale, and has accepted these Terms of Use.  The terms “you” and “your” mean you, your Affiliates and any other person or entity accessing your account or the Services on your behalf.

“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 2.01. Use of Services. You will: (a) be responsible for and ensure your Users’ compliance with these Terms of Use; (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which you acquired Customer Data, your use of Customer Data with the Services, and the interoperation of any Non-Prescryptive Products with which you use Services or Content; (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Prescryptive promptly of any such unauthorized access or use; (d) use Services and Content only in accordance with these Terms of Use, the Content, and applicable laws and government regulations; and (e) comply with terms of service of any Non-Prescryptive Products with which you use Services or Content. Any use of the Services in breach of the foregoing by you or your Users that in Prescryptive’s judgment threatens the security, integrity or availability of Prescryptive’s services, may result in Prescryptive’s immediate suspension of the Services, however Prescryptive will use commercially reasonable efforts under the circumstances to provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension.

Section 2.02.Usage Restrictions. You will not: (a) make any Service or Content available to anyone other than you or your authorized Users, or use any Service or Content for the benefit of anyone other than you or your Affiliates; (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering; (c) use a Service or Non-Prescryptive Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use a Service or Non-Prescryptive Product to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein; (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks; (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Prescryptive intellectual property except as permitted under these Terms of Use or the Content; (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof; (i) copy Content except as permitted herein; (j) frame or mirror any part of any Service or Content, other than framing on your own intranets or otherwise for its own internal business purposes; (k) except to the extent permitted by applicable law, access, use, disassemble, reverse engineer, or decompile a Service or Content to (i) develop or assist any third party in developing a competitive product or service, (ii) build a product or service using similar ideas, features, functions or graphics of the Service, (iii) copy any ideas, features, functions or graphics of the Service, (iv) determine whether the Services are within the scope of any patent, (v) monitor or assess the Services availability, performance, functionality or for any benchmarking or competitive purposes.

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 2.04. High-Risk Use. Your High-Risk Use of the Services is at your own risk.  You agree to indemnify, defend and hold Prescryptive harmless from and against all damages, costs and attorney’s fees in connection with any claims arising from your High-Risk Use of the Services, including any claims based in strict liability or that Prescryptive was negligent in designing or providing the Services to Customer.  The indemnification obligation in this Section 2.04 (High-Risk Use) is in addition to any defense obligation set for in any Customer Agreement, is not subject to any limitation of, or exclusion from, liability contained in any agreement, and shall survive termination of the applicable Customer Agreement and these Terms of Use.

Section 2.05. Removal of Content and Non-Prescryptive Products. If you receive notice that Content or a Non-Prescryptive Product must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Terms of Use, you will promptly do so. If you do not take required action in accordance with the above, or if in Prescryptive’s judgment continued violation is likely to reoccur, Prescryptive may disable the applicable Content, Service and/or Non-Prescryptive Product. If requested by Prescryptive, you shall confirm such deletion and discontinuance of use in writing and Prescryptive shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Prescryptive is required by any third-party rights holder to remove Content or receives information that Content provided to you may violate applicable law or third-party rights, Prescryptive may discontinue your access to Content through the Services.

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 5.01. Reservation of Rights. Subject to the limited rights expressly granted under these Terms of Use, Prescryptive, its Affiliates, its licensors and Content providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights.  No rights are granted to you hereunder other than as expressly set forth herein.

Section 5.02. License by Customer to Prescryptive. You grant Prescryptive, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-Prescryptive Products and program code created by or for you using a Service or for use by you with the Services, and Customer Data, each as appropriate for the purpose of enabling Prescryptive to provide and ensure proper operation of the Services and associated systems in accordance with the Customer Agreement and these Terms of Use. If Customer chooses to use a Non-Prescryptive Product with a Service, Customer grants Prescryptive permission to allow the Non-Prescryptive Product and its provider to access Customer Data and information about Customer’s usage of the Non-Prescryptive Product as appropriate for the interoperation of that Non-Prescryptive Product with the Service.

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

Section 6.01. Applicability and Acceptance. If Customer is a “covered entity” or “business associate,” Customer Data includes “protected health information,” and Prescryptive is providing Services as a “business associate,” as those terms are defined in 45 C.F.R 160.103, these Terms of Use shall incorporate and the parties accept and agree to the terms of the HIPAA Business Associate Agreement (the “BAA”) as provided and made available by Prescryptive at HIPAA BUSINESS ASSOCIATE AGREEMENT – Prescryptive  If there is any conflict between the terms of these Terms of Use and the BAA, the terms of the BAA will control.

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.

Section 7.04. Survival Upon Termination. This Article 7 (Representations, Warranties, Exclusive Remedies and Disclaimers) shall survive termination of the applicable Customer Agreement and these Terms of Use.

ARTICLE 8 – liability and indemnification

Section 8.01.  Limitations on Liability. Except for the indemnification obligations set forth in Section 8.02 (Indemnification by Customer) below, each party’s liability to the other hereunder will in no event exceed the actual proximate losses or damages caused by the breach of these Terms of Use.  In no event will either party or any of their respective employees, officers, directors, trustees, shareholders, affiliates and agents, be liable for any indirect, special, incidental, consequential, exemplary or punitive damages, or any damages for lost profits relating to a relationship with a third party, however caused or arising, whether or not they have been informed of the possibility of their occurrence.  In no event will Prescryptive’s liability exceed the fees paid by Customer to Prescryptive under these Terms of Use in the 12 months prior to the act that gave rise to the liability whether or not Customer has been advised of the possibility of such damages.

Section 8.02.  Indemnification by Customer. You agree to indemnify, hold harmless, and defend Prescryptive and its employees, officers, directors, trustees, shareholders, and agents from and against any and all third-party liabilities, actions, claims, damages, costs, losses and expenses (including without limitation reasonable costs of investigation and attorneys’ fees) caused by or arising out of (a) any breach of these Terms of Use by Customer, its Affiliates or Users; or (b) your use of the Services or Content.

Section 8.03.  Survival Upon Termination. This Article 8 (Liability and Indemnification) shall survive termination of the applicable Customer Agreement and these Terms of Use.

ARTICLE 9 – DISPUTE RESOLUTION

Section 9.01.  Agreement to Procedures and Rules. The parties agree that any controversy, claim or dispute related to these Terms of Use, including the breach hereof (collectively “Dispute”), shall be resolved in accordance with the procedures and rules set forth in these Sections 9.02 (Informal Good Faith Negotiations) through 9.08 (Confidentiality), and Section 11.10 (Governing Law; Forum Selection) below.

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 9.05.  Binding Arbitration. In the event the parties are unable to resolve a dispute within fifteen (15) business days of the date of the mandatory executive officers meeting, the dispute shall be settled by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and to be held in King County, Washington before a single arbitrator and to commence within twenty (20) days of the appointment of the arbitrator by JAMS.  The parties agree that the expedited procedures set forth in JAMS Comprehensive Rules shall be employed.  Any controversy, claim, or dispute under $250,000 shall be handled in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator shall have the power and may render awards in support thereof, to require any Party to an arbitration proceeding hereunder to produce relevant documents to the other Party.   The parties further agree that the arbitrator shall have the authority to grant injunctive or other forms of equitable relief to any party, but the arbitrator may not award exemplary or punitive damages.  The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to this section by bringing suit in any court of competent jurisdiction. This section shall survive the termination or cancellation of these Terms of Use.

Section 9.06.  No Class Actions or Coordination of Disputes. Any proceeding initiated pursuant to these Terms of Use shall proceed on an individual basis, meaning that the party initiating the proceeding must do so on its own behalf and not on behalf of, or coordination with, any third party and/or class or group of individuals or entities.  The parties agree that no claim shall be initiated, consolidated or coordinated with the claims of any other individual or entity, nor shall any claim be brought or otherwise asserted as a private attorney general.

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.

Section 9.09.  Survival Upon Termination. This Article 9 (Dispute Resolution) shall survive termination of the Customer Agreement and these Terms of Use.

ARTICLE 10 – Term and Termination

Section 10.01.  Term of Agreement. These Terms of Use become effective on the date Customer first accepts it and continues until all licenses granted by Prescryptive to access and use the Services have expired or are terminated in accordance with the applicable Customer Agreement.  The term for each license granted by Prescryptive to access and use the Services is specified in the applicable Customer Agreement.

Section 10.02.  Effect of Termination.

(a) Payment Obligations. Termination of these Terms of Use shall not in any way release Customer from its responsibility to pay Prescryptive for Services used prior to and after the termination date.

(b) Other Remedies. A party’s right to terminate these Terms of Use shall not be exclusive of any other remedies available to such party, at law or in equity.

(c) Survival of Certain Terms. Upon termination of these Terms of Use, all further obligations of the parties hereunder shall terminate, but no termination hereunder shall affect the rights and obligations of the parties accruing prior to the effective date of such termination.  The parties shall in all events remain bound by and continue to be subject to the provisions set forth in Article 7 (Representations, warranties, Exclusive Remedies and Disclaimers), Article 8 (Liability and Indemnification), Article 9 (Dispute Resolution), Section 10.02 (Effect of Termination), Article 11 (General Provisions), any provision explicitly designated to survive termination of these Terms of Use or applicable Customer Agreement, and any other provision which by its nature survives termination.

ARTICLE 11 – General Provisions

Section 11.01.  Entire Agreement. These Terms of Use constitute the entire agreement between Prescryptive and Customer with respect to Customer’s access and use of the Services and Content and supersedes all prior agreements and understandings, both written and oral, between Prescryptive and Customer.  Any term or condition stated in a Customer purchase order or any other Customer order documentation is void.  In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Customer Agreement, (2) these Terms of Use, and (3) the Content.

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 11.03.  Force Majeure. The performance obligations of Prescryptive or Customer respectively hereunder shall be suspended to the extent that all or part of these Terms of Use cannot be performed due to causes that are outside the reasonable control of such party, including without limitation, any delay or failure due to such causes as acts of a public enemy, acts of any person engaged in a subversive or terrorist activity or sabotage, wars, fires,  earthquakes, extreme weather events such as floods, hurricanes and tornadoes, explosions, strikes, slow-downs, and freight embargoes and comparable causes.  The foregoing shall not be considered to be a waiver of any continuing obligations under these Terms of Use, and as soon as conditions cease, the party affected thereby shall fulfill its obligations as set forth under these Terms of Use.  Prescryptive maintains and continually updates a disaster recovery plan designed to mitigate any disruption of services provided by Prescryptive under these Terms of Use, a copy of which will provided to you upon request.  This clause may not be invoked to excuse a party’s payment obligations under any applicable Customer Agreement.

Section 11.04. Waiver  The failure of either party to insist upon the strict observation or performance of any term or provision of these Terms of Use or to exercise any right or remedy will not impair or waive any such right or remedy or constitute a waiver of any subsequent breach of the same term or provision or any other term or provision hereof.

Section 11.05.  Severability In the event that any provision of these Terms of Use shall be determined to be invalid, unlawful, void or unenforceable to any extent, the remaining provisions of these Terms of Use shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.

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.

Section 11.08. Third Party Beneficiary Exclusion.  These Terms of Use are not intended, and shall not be construed, to create third-party beneficiary rights or remedies in favor of any person or entity who is not a party to hereto, and no such person or entity shall have any right or cause of action under these Terms of Use except as otherwise provided herein.

Section 11.09. Governing Law; Forum Selection. These Terms of Use and all disputes between the parties shall be governed by, and construed in accordance with, the laws of the State of Washington without giving effect to the body of laws relating to conflicts of laws.   In accordance with Section 9.05 (Binding Arbitration) all disputes between the parties shall be brought solely and exclusively before an arbitrator located in County of King, State of Washington.  Customer and Prescryptive consent to the jurisdiction of the arbitrator located in County of King, State of Washington, and waive all objections to venue and jurisdiction within that forum.

Section 11.10. Relationship of Parties. No provision of this Agreement is intended to create or shall be construed to create any relationship between Prescryptive and Customer other than that of independent entities contracting with each other solely for the purpose of effecting the provisions of these Terms of Use.  Neither party shall have the right to make any representations concerning the duties, obligations, or services of the other except as consistent with the express terms of these Terms of Use or as otherwise authorized in writing by the party about which such representation is asserted.

Section 11.11. Construction; Interpretation.  In the event of an ambiguity or question of intent or interpretation arises with respect to these Terms of Use, it shall be construed as if jointly by the parties and in accordance with its fair meaning.   There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of authorship of any of the terms of these Terms of Use.   The headings in these Terms of Use are used solely for the purpose of convenience and will not be considered in the construction of any provision in these Terms of Use.