TERMS OF SERVICE
(Last Updated September 2, 2020)
Digital Pharmacist Inc., a Delaware corporation with offices at 4315 Guadalupe Street, Suite #200, Austin, TX 78751 (together with its affiliates and subsidiaries, “Digital Pharmacist”) maintains proprietary pharmacy software platforms, made available through the website and associated domains of www.digitalpharmacist.com, https://accounts.rxwiki.com/ and www.telemanager.com (the “Platforms”). Digital Pharmacist offers its pharmacy customers directly, and through the Platforms, the products and services listed at https://www.digitalpharmacist.com/client/software-services-description/ (the “Product Page”) (such products and services listed on the Product Page as the same may be updated, modified or otherwise changed from time to time, the “Subscription Services”).
Pharmacy and Digital Pharmacist agree as follows:
1. PHARMACY’S ACCESS TO, AND USE OF, THE PLATFORMS AND DIGITAL PHARMACIST’S OBLIGATIONS WITH RESPECT TO THE SUBSCRIPTION SERVICES ARE EXPRESSLY CONDITIONED ON PHARMACY’S ACCEPTANCE OF THE AGREEMENT.
Pharmacy agrees effective as of the effective date set forth in the Order Statement, (the “Effective Date”), to be bound by the Agreement, and represents and warrants to Digital Pharmacist that:
- The individual entering into the Agreement has the power and authority to do so on behalf of Pharmacy;
- Neither Pharmacy nor the individual entering into the Agreement is named on any U.S. government list of persons or entities prohibited from receiving exports; and
- Neither Pharmacy nor the individual entering into the Agreement a resident of, or otherwise domiciled in, any countries set forth on the State Sponsored Terrorism List promulgated by the U.S. government (which currently includes Iran, Sudan and Syria).
2. DIGITAL PHARMACIST’S PROVISION OF THE SUBSCRIPTION SERVICES IS GOVERNED BY THESE TERMS
Subject to the terms and conditions of these Terms, Digital Pharmacist shall use commercially reasonable efforts to provide Pharmacy the Subscription Services ordered by Pharmacy during the periods set forth in, and otherwise in accordance with, the Order Statement and the Product Page.
3. PHARMACY’S USE OF THE PLATFORM IS SUBJECT TO COMPLIANCE WITH THE AGREEMENT
Digital Pharmacist’s provision of the Subscription Services, including, without limitation, access to and use of the Platforms is strictly conditioned upon Pharmacy’s full compliance with the Agreement and all applicable laws, rules and regulations. Digital Pharmacist may, without limiting any other available remedy, terminate the Agreement, and/or suspend provision of Subscription Services to Pharmacy at any time and without notice if Digital Pharmacist believes, or receives a claim that, Pharmacy is in violation of any section of the Agreement, including, without limitation, the restrictions on Platform use set forth in Section 10.
4. PHARMACY MUST PROVIDE DIGITAL PHARMACIST AND MAINTAIN ACCURATE ACCOUNT INFORMATION
Pharmacy represents and warrants all information Pharmacy provides Digital Pharmacist about Pharmacy in ordering Subscription Services (such information, “Account Information”) is complete, true and current and accurately reflected in the Order Statement and invoices and/or statements received from Digital Pharmacist. Additionally, if a change occurs such that Account Information is no longer complete, true, current or accurate, Pharmacy shall, promptly inform Digital Pharmacist of such change in writing.
5. PHARMACY MUST PAY FEES DESCRIBED ON THE ORDER STATEMENT
As a condition to receiving the Subscription Services, Pharmacy shall pay all recurring fees and other amounts further described in, and in accordance with, the Order Statement (“Fees”). Pharmacy hereby authorizes Digital Pharmacist to charge the credit card—or other electronic payment method—associated with Pharmacy’s Account Information for all Fees on an as-incurred basis.
Without limiting the generality of Section 4, Pharmacy is responsible for ensuring that the credit card information on file with Digital Pharmacist is current at all times. Missed billing cycles, for any reason, may result in loss or interruption of Subscription Services.
6. INVOICING, LATE FEES AND INCREASES
Notwithstanding Digital Pharmacist’s right set forth in Section 5 to automatically charge Pharmacy for the payment of Fees, Digital Pharmacist may invoice Pharmacy for any Fees, and Pharmacy shall pay such invoice within fifteen (15) days of receipt thereof via money transfer, ACH, check or any other payment method Digital Pharmacist may deem acceptable in its sole discretion.
If payment is not made on the respective due date, Digital Pharmacist may, at its discretion and in addition to other remedies available, (i) charge a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, and compounded monthly, and (ii) suspend Pharmacy’s access to the Platform.
Additionally, Digital Pharmacist may increase the Fees associated with any Subscription Service upon the commencement of any renewal term of such Subscription Services by no more than five percent (5%) or the actual percentage change in the Consumer Price Index for the United States during the immediately prior term. Prior to making any such Fee increase, Digital Pharmacist agrees to use reasonable efforts to provide Pharmacy with notice thereof.
7. FEES ARE NONREFUNDABLE AND EXCLUSIVE OF TAX
All Fees are (i) prepaid and nonrefundable (except to the extent set forth in the Agreement), (ii) due and payable in U.S. dollars, and (iii) exclusive of applicable sales, excise, use or similar taxes. Pharmacy shall pay all sales, excise, use or similar taxes directly or to Digital Pharmacist, as required by applicable law.
9. PHARMACY CONSENTS TO RECEIVE COMMERCIAL MESSAGES
Digital Pharmacist may need make certain commercial offers available to Pharmacy from time to time. AS SUCH, PHARMACY HEREBY CONSENTS TO RECEIVE COMMERCIAL E-MAIL, FAXES AND OTHER MESSAGES FROM DIGITAL PHARMACIST AND/OR ITS PARTNERS, AND PHARMACY HEREBY ACKNOWLEDGES AND AGREES THAT PHARMACY ACCOUNT INFORMATION MAY BE USED FOR THE PURPOSE OF INITIATING COMMERCIAL E-MAIL, FAXES AND OTHER MESSAGES. Pharmacy may opt out of receiving some of these messages, by notifying Digital Pharmacist in writing; however, to stop receiving any messages from Digital Pharmacist whatsoever (including administrative messages regarding the Service), Pharmacy discontinue use of the Subscription Services.
11. PHARMACY IS RESPONSIBLE FOR CERTAIN INFORMATION AND OBLIGATIONS RELATING TO THE SERVICES
Pharmacy is solely responsible for (i) securing, and maintaining the confidentiality of, any Pharmacy Account Information, passwords and files, (ii) obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use the Platforms, including hardware, software, operating systems, networking and the like, (iii) backing-up Pharmacy Data (defined below) during the term of the Agreement. Pharmacy hereby acknowledges it will not have access to Pharmacy Data through the Platforms following the expiration or termination of the Agreement.
12. PHARMACY IS PROHIBITED FROM CERTAIN ACTIONS
Pharmacy may not, nor permit or encourage any third party to (i) directly, or indirectly, (a) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Platform (“Software”), (b) modify, translate, or create derivative works based on the Platform or any Software, (c) use the Platform or any Software for timesharing or service bureau purposes or other computer service to a third party, (d) modify, remove or obstruct any proprietary notices or labels, or (e) use any Software or the Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with any Software or the Platform; or (ii) in connection with the Subscription Services, submit to Digital Pharmacist or otherwise process Pharmacy Data through a Platform that (a) is defamatory, harmful to minors, obscene, indecent, pornographic, libelous, threatening, harassing, false, misleading or inaccurate, (b) contains or causes to be placed on Digital Pharmacist’s or other third party’s systems any Trojan horses, worms, viruses or programming routines intended to interfere, damage, corrupt, surreptitiously intercept or expropriate any system, data or personal information, (c) violates any applicable local, state, federal or foreign law, rule or regulation, including privacy laws and privacy standards, or (d) contains any health or medical information of any individual or any information of any person under the age of 13.
13. TRADEMARK LICENSE
Pharmacy hereby grants Digital Pharmacist a limited, non-exclusive, sub licensable, irrevocable (during the term of the Agreement), royalty-free license to use, copy, modify, display, and distribute Pharmacy’s trademarks, service marks, trade names, logos, company names, or other similar designations (the “Pharmacy Marks”) that it provides to Digital Pharmacist (i) in connection with providing Subscription Services hereunder, and (ii) in Digital Pharmacist’s promotional materials during the term of the applicable Subscription Service; provided, in each case, Digital Pharmacist shall comply with any usage guidelines and quality control standards provided by Pharmacy with respect to Digital Pharmacist’s use of the Pharmacy Marks.
Digital Pharmacist grants to Pharmacy a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license during the term of this Agreement to the “Digital Pharmacist” logo provided by Digital Pharmacist to Pharmacy (the “Digital Pharmacist Marks”) solely for marketing purposes to advertise that Pharmacy is a user of the Software and Services; provided, Pharmacy shall comply with any usage guidelines and quality control standards provided by Digital Pharmacist with respect to Pharmacy’s use of the Digital Pharmacist Marks.
14. USE OF PROTECTED HEALTH INFORMATION IS GOVERNED BY DIGITAL PHARMACIST’S HIPAA BUSINESS ASSOCIATE AGREEMENT
The parties acknowledge and agree that Pharmacy is a “Covered Entity” as such term is defined under the Health Insurance Portability and Accountability Act of 1996, and associated regulations, in each case, as amended from time to time (“HIPAA”) and that Pharmacy’s use of the Subscription Services may involve the use and/or disclosure of protected health information (“PHI”) as defined under HIPAA. The parties acknowledge and agree that to the extent that Digital Pharmacist is required to access, create, use, disclose, transmit or maintain PHI in providing Pharmacy the Subscription Services hereunder, Digital Pharmacist’s HIPAA Business Associate Agreement (“BAA”), available at http://www.digitalpharmacist.com/business-associate-agreement/ and incorporated by reference in its entirety into the Order Statement, is to govern such access, creation, use, disclosure transmission and/or maintenance. If a conflict exists between the terms and conditions of these Terms and those of the BAA, the terms and conditions of the BAA will control with respect to the treatment of PHI. Unless expressly provided otherwise in writing, each party shall only use PHI as authorized under the Agreement and in accordance with the BAA.
15. DIGITAL PHARMACIST MAY USE PHARMACY’S NON-PHI DATA IN CONNECTION WITH THE SUBSCRIPTION SERVICES
As between Digital Pharmacist and Pharmacy, Pharmacy owns all right, title, and interest in and to any non-PHI data that is aggregated, de-identified anonymized and collected by Digital Pharmacist from Pharmacy or its Authorized Users, in connection with their use of the Subscription Services (“Pharmacy Data”). To the fullest extent permissible under applicable law, Pharmacy hereby grants to Digital Pharmacist a perpetual non-exclusive, transferable, sublicensable, royalty free world-wide license to use Pharmacy Data (i) to provide the Subscription Services, and (ii) as necessary to monitor and improve the Platforms.
16. DIGITAL PHARMACIST MAY USE AND OWNS CERTAIN BLIND DATA
Pharmacy grants to Digital Pharmacist a perpetual, non-exclusive, transferable, sublicensable, royalty free world-wide license to use (i) Pharmacy Data to collect, develop, create, extract or otherwise generate statistics and other information and to otherwise compile, synthesize and analyze such data (“Blind Data”), and (ii) PHI on an anonymized and de-identified basis consistent with 45 CFR 164.514(b) to the fullest extent allowed under law. Notwithstanding anything in the Agreement to the contrary, to the extent Digital Pharmacist collects or generates Blind Data, such Blind Data will be owned solely by Digital Pharmacist and may be used for any lawful business purpose without a duty of accounting or obligation; provided, such Blind Data does not identify the source of such data.
17. ADDITIONAL PHARMACY OBLIGATIONS
Pharmacy is responsible for obtaining end user (i.e., Pharmacy patient) authorization as required by state and/or Federal law prior to using or disclosing individually identifiable patient information. Pharmacy is solely responsible for any communications sent via the Subscription Services. Pharmacy hereby warrants that it is solely responsible for the end-user content and its compliance with state and federal pharmacy board regulations.
18. DIGITAL PHARMACIST OWNS ALL RIGHTS IN THE PLATFORM, SOFTWARE AND CERTAIN DATA
Pharmacy agrees and acknowledges that, as between Pharmacy and Digital Pharmacist, Digital Pharmacist shall own and retain all right, title and interest in and to (i) the Platform, the Services and Software and all improvements, enhancements and modifications thereto, (ii) Blind Data, and other material, that is anonymized, de-identified, or otherwise rendered not reasonably associated or linked to Pharmacy or any other identifiable individual person or entity, (iii) comments, suggestions, or other feedback regarding the Subscription Services or the Platforms submitted by Pharmacy or an Authorized User, and (iv) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Digital Pharmacist IP”). To the extent Pharmacy has or acquires any right, title or interest in any Digital Pharmacist IP, Pharmacy hereby assigns all such right, title and interest in such Digital Pharmacist IP to Digital Pharmacist.
19. THE PLATFORM AND SERVICES UTILIZE THIRD PARTY MATERIALS AND APPLICATIONS
The Platforms may display, include, or make available content, data, information, or materials from third parties (“Third-Party Materials”), or provide links to third-party websites. Pharmacy acknowledges and agrees that Digital Pharmacist is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. Without limiting the generality of Section 26 of these Terms, Digital Pharmacist does not warrant or endorse, and will not have any liability or responsibility to Pharmacy or any other person for, any Third-Party Materials.
20. DIGITAL PHARMACIST MAKES NO REPRESENTATIONS THAT THE PLATFORM WILL ALWAYS BE AVAILABLE, PROPERLY FUNCTIONING OR SECURE
Without limiting the generality of Section 26, Digital Pharmacist makes no representation about any Platform’s uptime, or any Platform’s availability or permissibility in any particular location. Scheduled system maintenance may take place from time to time, and emergency maintenance may be required at other times, and, in each case, during such times, the Platform may be unavailable. Use of a Platform is void where use of such Platform is prohibited. Pharmacy’s use of a Platform is at Pharmacy’s own initiative and Pharmacy is responsible for compliance with any applicable laws in connection with such use. Additionally, while Digital Pharmacist uses its best efforts to ensure the Subscription Services comply with applicable HIPAA security standards, it makes no representation, warranty or guarantee that any confidential or health information, including PHI, will remain confidential or secure. Any Subscription Services that are not specifically designed to send secure communications should not be used for such purposes.
21. INFORMATION DISCLOSED BETWEEN PHARMACY AND DIGITAL PHARMACIST IS CONFIDENTIAL
“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with the Agreement that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, for example, User Data. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
The Receiving Party will (i) use an appropriate degree of care (but in no event less than reasonable care) to protect Confidential Information, (ii) not to disclose or use any Confidential Information for any purpose outside the scope of the Agreement, and (iii) limit access to Confidential Information to those of its employees, contractors and agents who need such access for purposes consistent with the Agreement and who are bound by confidentiality restrictions no less stringent than those herein. Notwithstanding the foregoing, Digital Pharmacist may disclose Pharmacy’s Confidential Information to the extent it believes is reasonably necessary to comply with any court order or law.
Within thirty (30) days following the expiration or earlier termination of the Agreement, to the extent Digital Pharmacist possesses or controls any Pharmacy Confidential Information that comprises User Data, Digital Pharmacist shall destroy or otherwise purge from Digital Pharmacist’s systems such Confidential Information, provided that Digital Pharmacist may maintain one (1) copy of any such Confidential Information if Digital Pharmacist determines, in its sole discretion, that the maintenance of such Confidential Information is necessary to comply with applicable laws or regulations.
22. California Consumer Privacy Act (CCPA) Compliance
Pharmacy acknowledges and agrees that Digital Pharmacist is acting as a Service Provider within the meaning of CCPA in connection with the Subscription Services. Digital Pharmacist, as a Service Provider, will not use Personal Information for any purpose not permitted by CCPA. Digital Pharmacist will not retain, use or disclose Personal Information for any purposes other than expressly specified herein, including, without limitation, performing the Subscription Services. As permitted by CCPA, Digital Pharmacist may aggregate, de-identify, or anonymize Personal Information, so that it no longer meets the Personal Information definition, and may use such aggregated, de-identified, or anonymized data for its own research and development purposes. Digital Pharmacist will not attempt to or actually re-identify any previously aggregated, de-identified, or anonymized data.
Digital Pharmacist will comply with all reasonable instructions from Pharmacy related to (i) questions or complaints received from Consumers regarding their Personal Information (each, a “Privacy Inquiry”) and (ii) any requests from Consumers exercising their rights in their Personal Information granted to them under CCPA (“Privacy Request”). If Digital Pharmacist is directly contacted with a Privacy Inquiry or Privacy Request, Digital Pharmacist will forward such inquiry to Pharmacy. Unless otherwise permitted by CCPA, Digital Pharmacist will only take actions regarding a Privacy Inquiry or a Privacy Request pursuant to its legal obligations and Pharmacy’s lawful and commercially reasonable instructions. At Pharmacy’s written request, Digital Pharmacist will assist Pharmacy at Pharmacy’s expense in answering or complying with any Privacy Inquiry or Privacy Request within thirty (30) days of Pharmacy’s written request.
24. PHARMACY WILL DEFEND DIGITAL PHARMACIST AGAINST CERTAIN CLAIMS
Pharmacy shall defend Digital Pharmacist and hold Digital Pharmacist harmless against any claim, suit, demand, or action made or brought against Digital Pharmacist (i) alleging that Pharmacy’s use of the Platform in breach of the Agreement infringes, misappropriates, dilutes or otherwise violates any individual’s or entity’s intellectual property rights, (ii) relating to or arising from Digital Pharmacist’s use of Pharmacy Data or PHI as permitted by the Agreement, or (iii) relating to or arising from Pharmacy’s breach of Sections 12 and/or 17. In addition, Pharmacy will indemnify Digital Pharmacist from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Digital Pharmacist in connection with or in settlement of any such claim, suit, demand, or action.
25. DIGITAL PHARMACIST WILL DEFEND PHARMACY AGAINST CERTAIN CLAIMS
Digital Pharmacist shall defend Pharmacy and hold Pharmacy harmless against any claim, suit, demand, or action made or brought against Pharmacy (i) alleging that Pharmacy’s use of the Platform in compliance with the Agreement infringes, misappropriates, dilutes or otherwise violates any individual’s or entity’s intellectual property rights (“Intellectual Property Claims”), (ii) arising out of unauthorized disclosure of end-user PHI due to Digital Pharmacist’s negligent acts or omissions. For the avoidance of doubt, Indemnification under this Section may not be invoked or relied upon by Pharmacy for any Intellectual Property Claims that arise from (a) misuse or alteration of the Platforms by Pharmacy, Pharmacy affiliated companies or Pharmacy agents if no infringement would have occurred absent such misuse or alteration, (b) use of the Subscription Services in combination with any apparatus, hardware, or services not provided or furnished by Digital Pharmacist, or (c) use of the Software and Services in a manner for which they were neither designed or contemplated, in each case, if no infringement would have occurred absent such event.
26. DIGITAL PHARMACIST DISCLAIMS ALL WARRANTIES NOT EXPRESSLY STATED HEREIN
EXCEPT AS EXPRESSLY PROVIDED HEREIN, (i) Digital Pharmacist DOES NOT WARRANT THAT ACCESS TO THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE PLATFORM OR PROVISION OF ANY SUBSCRIPTION SERVICE will produce any particular result or any solution to PHARMACY’s particular needs, and (ii) THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS,” AND Digital Pharmacist DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IN EACH CASE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
27. DIGITAL PHARMACIST IS NOT LIABLE FOR CERTAIN DAMAGES AND LIABILITIES AND HAS MAXIMUM LIABILITY HEREUNDER
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, IN NO EVENT WILL (I) DIGITAL PHARMACIST’S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID OR OWED BY PHARMACY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) DIGITAL PHARMACIST HAVE ANY LIABILITY TO PHARMACY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT DIGITAL PHARMACIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
28. TERM AND TERMINATION
The Agreement is effective beginning on the Effective Date and will continue for the term set forth in, and in accordance with, the Order Statement (“Initial Term”). The term will automatically renew for consecutive periods of equal duration (each a “Renewal Term”, and together with “Initial Term”, collectively, the “Term”)) unless you or we notify the other of its desire to terminate the Agreement at least thirty (30) days prior to the end of the then-current Term, or in the case of a month to month subscription, prior to the start of the new Term. To terminate this Agreement, you should email your request to email@example.com.
In addition to any other remedies Digital Pharmacist may have, Digital Pharmacist may, terminate the Agreement immediately upon written notice if Pharmacy fails to pay any Fee or other amount when due or otherwise materially breaches the Agreement.
Upon termination of the Agreement, Pharmacy must immediately cease all use of and all access to the Platform. Sections 6, 16, 18, 21–34 of these Terms shall survive any termination or expiration of the Agreement. All other rights and obligations shall be of no further force or effect.
29. THE AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF TEXAS
This Agreement is governed in all respects by the laws of the State of Texas, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement.
30. DISPUTES RELATING TO THE AGREEMENT WILL BE RESOLVED THROUGH BINDING ARBITRATION
Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in Austin, Texas by a single arbitrator knowledgeable in government contracting matters and the commercial aspects of “software as a service” or “platform as a service” arrangements and intellectual property. The arbitrator will provide detailed written explanations to the parties to support his/her award and regardless of outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.
31. DIGITAL PHARMACIST IS NOT RESPONSIBLE FOR THINGS DIGITAL PHARMACIST CANNOT CONTROL
Digital Pharmacist is not responsible nor liable for any delays or failures in performance from any cause beyond Digital Pharmacist’s control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions or acts of hackers, internet service providers or any other third party, or acts or omissions of Pharmacy.
Without limiting the generality of the foregoing or Section 26, the Platform and the Services rely on third party technology and services such as application programming interfaces for Third Party Applications and web hosting services. Any change to the products or services offered by any of these third party providers may materially and adversely effect, or entirely disable, Pharmacy’s use of or access to the Platform. Likewise, Digital Pharmacist cannot guarantee that any User Data hosted on a third party server will remain secure. Pharmacy hereby acknowledges that Digital Pharmacist cannot offer any additional or modified security procedures other than those put in place by Digital Pharmacist’s hosting service provider(s); however, Digital Pharmacist shall provide Pharmacy with information regarding the hosting service provider’s security practices upon request made to support@DigitalPharmacist.com.
32. CERTAIN TERMS AND RESTRICTIONS RELATING TO EXPORT LAWS
Pharmacy acknowledges the Software and the Platform are subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and, without limiting any other obligation of Pharmacy hereunder, Pharmacy will comply with the Export Laws. Pharmacy will not ship, transfer, export, or re-export the Software or the Platform, directly or indirectly, to: (i) any countries that are subject to US export restrictions; (ii) any end user whom Pharmacy knows or has reason to know will utilize them in the design, development, or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”); or (iii) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government. Pharmacy represents and warrants Pharmacy will not use the Software for a Prohibited Use.
33. ASSIGNING THE AGREEMENT
Neither party may assign any of its rights or delegate any of its obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Agreement in its entirety, without consent of the other party, to its affiliate or in connection with any merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, and in the case of Pharmacy, not involving a direct competitor of Digital Pharmacist. Any assignment or delegation in violation of this Section shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
34. GENERAL TERMS OF THE AGREEMENT
In connection with this Agreement, each party is an independent contractor and as such will not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between the parties for any purpose.
If any provision of the Agreement is held to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable.
The Agreement—including, without limitation, the BAA and Order Statement—is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement.
Any modification to the Agreement by Digital Pharmacist shall be effective after Digital Pharmacist first notifies Pharmacy of the modification (via an update delivered through the Platform or the Site or via email or other notification) and Pharmacy signifies its acceptance via acknowledgement or continued use of any applicable Services for a reasonable time.
The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to these Terms as a whole and not to any particular Section or paragraph of these Terms; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” are references to a section of this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.
All notices required under or otherwise sent relating to the Agreement will be in writing and, if to Digital Pharmacist shall be delivered to legal@DigitalPharmacist.com, and if to Pharmacy shall be delivered to the email address associated with Pharmacy’s Account; provided, however, any notice from Pharmacy to Digital Pharmacist required by, arising out of, or related to Sections 21–25 shall be delivered via certified mail, return receipt requested, to: 4315 Guadalupe Street, Suite #200, Austin, TX 78751 Attention: Legal. Notice will be deemed to have been duly given when received when receipt is electronically confirmed.