Effective Date: March 5, 2020
These terms of service (the “Agreement”) set out the terms and conditions that govern your access of MedWise (“MedWise”), a proprietary technology platform of TRHC OpCo, Inc. (“TRHC”) and related services (collectively, the “Services”). This is a legally enforceable contract between you (“Customer”) and us. By accessing or otherwise using MedWise, you agree to be bound by these terms of service. If you do not agree to this Agreement, do not access or use Medwise.
This Agreement constitutes the exclusive and binding agreement between the parties covering the license and use of the TRHC Property and the Services (defined below). Additional or different terms proposed by Customer will not be applicable unless accepted in writing by TRHC. If this Agreement is construed to be an offer, this offer expressly limits acceptance by Customer to the terms of this offer and notice of objection by TRHC to any different or additional terms is hereby given. If this Agreement is construed to be an acceptance of an offer, this acceptance is expressly conditioned upon TRHC’s assent to any different or additional terms contained in this Agreement.
In consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, intending to be legally bound, the parties hereby agree as follows:
- 1.1 “Affiliate” means, with respect to any entity, any other present or future entity Controlling, Controlled by, or under common Control with such entity, where the term “Control,” and its derivatives, of an entity means the legal, beneficial, or equitable ownership, directly or indirectly, of at least fifty percent (50%) of the capital stock or other ownership interest of such entity ordinarily having voting rights, or the power in fact to direct or cause the direction of the management of such entity or to elect the majority of such entity’s board members or other directors or managers.
- 1.2 “Agreement” means this SaaS Platform License and Services Agreement along with all exhibits or attachments hereto or thereto, all of which are hereby incorporated herein by reference,
- 1.3 “Authorized User(s)” has the meaning set forth in Section 4.1 of this Agreement.
- 1.4 “Customer Data” means all data and information, including without limitation photographs, images and other media, submitted by Customer, its Affiliates or their Authorized Users to TRHC through the TRHC Platform.
- 1.5 “Deliverable(s)” means deliverables specifically identified in any exhibit to this Agreement, as applicable.
- 1.6 “Documentation” means any user guides, technical manuals and other materials provided or made available by TRHC for use by Customer.
- 1.7 “Intellectual Property Rights” means any and all tangible and intangible: (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (b) trademark and trade name rights and similar rights; (c) trade secret rights, (d) patents, patent applications, designs, algorithms and other industrial property rights; and (e) other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise.
- 1.8 “Output” means the information and data, excluding Customer Data, developed or collected by TRHC or otherwise generated by, residing in or resulting from the TRHC Platform or Services.
- 1.9 “Reports” means the resulting work product derived from the processing and analytics performed on the Customer Data through the TRHC Platform.
- 1.10 “Services” means, collectively, the Hosting Services, Support Services and any applicable Professional Services as set forth in an exhibit hereto, in each case including any Deliverables provided in connection therewith.
- 1.11 “TRHC Platform” means the cloud-based servers, and associated software, code, application programming interfaces, user interfaces, and other applications that are made available by TRHC at the URL specified in the exhibit or provided by TRHC (or such successor URL as selected by TRHC of which Customer is notified) for Customer, as may be further described in the exhibits, along with any Updates thereto made available to Customer by TRHC.
- 1.12 “TRHC Property” means the TRHC Platform, Documentation, Output and Reports (excluding Customer Data), all as defined herein.
LICENSE AND RESTRICTIONS.
- 2.1 Limited License. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, TRHC grants to the Customer a limited, nonexclusive, non-sublicensable and non-transferable license, during the applicable Term, to (a) access and use, for internal purposes only, the TRHC Platform by Authorized Users; and (b) use the Documentation to facilitate the use of the TRHC Platform, in each case in accordance with the applicable Documentation and the terms and conditions of this Agreement (the “License”).
- 2.2 License Restrictions. Customer will not (and will not permit any third party to): (a) make the TRHC Property or Services available to, or use any TRHC Property or Service for the benefit of, anyone other than Customer or its Authorized Users (as defined below), unless expressly stated otherwise in the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any TRHC Property or Service, or include any TRHC Property or Services in a service bureau or outsourcing offering, (c) use any TRHC Property 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 any TRHC Property or Service to store or transmit any virus, Trojan horse, worm, time bomb, or other routine, mechanism or code designed to disable, erase, alter, or otherwise harm any computer system, program, database, data, hardware or communications system, (e) interfere with or disrupt the integrity or performance of any TRHC Property or Service (or third party data contained therein), (f) attempt to gain unauthorized access to any TRHC Property or Service or its related systems, networks or data, (g) permit direct or indirect access to or use of any TRHC Property or Service in a way that circumvents a contractual usage limit or security mechanism, procedure, or protocol, or to any of TRHC’s (or TRHC’s licensors’) Intellectual Property Rights, (h) copy any TRHC Property or Service or any part, feature, function or user interface thereof, (i) use the TRHC Property or any Service other than for its intended purpose and as allowed by this Agreement, (j) frame or mirror any part of any TRHC Property, other than as expressly permitted in the Documentation, or (k) reverse engineer any TRHC Property or Service (except to the extent such restriction is permitted by applicable law).
- 2.3 Updates. TRHC reserves the right to make updates, modifications and enhancements of the TRHC Platform and Documentation (“Updates”) in its discretion during the Term provided that the terms and conditions of this Agreement shall continue to apply to any such Updates made available to Customer by TRHC.
- 3.1 Hosting Services. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, TRHC will host, manage, operate, maintain and make available the TRHC Platform for remote electronic access and use by Customer solely in accordance with the License during the applicable Term (the “Hosting Services”).
- 3.2 Support Services. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, TRHC will provide the technical support and maintenance services for the TRHC Platform during the applicable Term in accordance with the terms of TRHC’s maintenance and support documentation (the “Support Guide”) made available to Customer in connection with this Agreement, as such Support Guide may be updated from time to time by TRHC (the “Support Services”).
- 3.3 Professional Services. From time to time, TRHC and Customer may attach exhibits to this Agreement that relate to professional services in addition to the Hosting Services and Support Services to be provided by TRHC as mutually agreed upon by the parties in writing (“Professional Services”). Each such exhibit will set forth the Professional Services to be provided together with the applicable Fees, Deliverables, milestones and other pertinent information related to the scope of such Professional Services. Except to the extent expressly set forth otherwise in the applicable exhibit, TRHC retains ownership of all Intellectual Property Rights in, to or associated with the Professional Services.
- 3.4 Information Security. TRHC will implement and maintain information security controls, policies and procedures that include administrative, technical and physical safeguards designed to: (a) maintain the security and integrity of Customer Data in TRHC’s possession or control; (b) protect against anticipated threats or hazards to the security or integrity of the TRHC Platform; and (c) protect against unauthorized access or use of such Customer Data. Except to the extent prohibited by Applicable Law (as defined below) or TRHC’s contractual obligations to third parties, TRHC shall promptly notify Customer upon becoming aware of any unauthorized access to or disclosure of Customer Data (i) residing on any TRHC system, (ii) under the control of TRHC, or (iii) for which TRHC is responsible for managing in connection with the Services (a “Security Event”) and shall take action as reasonably determined by TRHC to remediate, mitigate and respond to any such Security Event.
ACCESS AND USE OF THE TRHC PLATFORM.
- 4.1 Conditions to Access. Customer will identify pharmacist employees, technician employees and/or student interns acting under the supervision of a pharmacist employee of Customer who will be authorized by Customer to have access to and use the TRHC Platform on behalf of Customer (“Authorized Users”). Customer acknowledges and agrees a condition to receiving access to the TRHC Platform, each pharmacist employee Authorized User must pass TRHC’s course in order to become a Certified MedWise Advisor Pharmacist, which is available online through the TRHC University and further described on Exhibit A, attached hereto and incorporated herein by reference (the “Medwise Training”). In addition, as a condition to continued access and use of the TRHC Platform, Customer agrees to the electronic monitoring of Authorized Users who are receiving or have received certification as a Medwise Advisor Pharmacist in order to ensure that the MedWise Safety Reports are being properly prepared for the patients and prescribers. Ongoing training on MedWise will be required for Authorized Users to maintain their access to the TRHC Platform when updates to MedWise workflows or changes in science and technology are completed that affect the TRHC Platform. Frequency for these trainings will not be more than quarterly.
- 4.2 Access. Upon completion of the Medwise Training, Customer shall be provided passwords to the TRHC Platform that will allow access to the TRHC Platform, including the uploading of Customer Data, Output and Reports from the TRHC Platform (“Access IDs”). Customer will not permit Authorized Users to access and use the TRHC Platform, except solely during the Term. TRHC has no obligation to verify the identity of any person who gains access to the TRHC Platform by means of an Access ID. Customer is solely responsible for monitoring its Authorized Users’ access to and use of the TRHC Platform, and for any failure by any Authorized User to comply with this Agreement; a failure to comply with this Agreement by an Authorized User is a failure by Customer. Customer must immediately take all necessary steps, including providing notice to TRHC, to effect the termination of an Access ID for any Authorized User if there is any compromise in the security of that Access ID or if unauthorized use is suspected or has occurred. Customer shall use, safeguard and periodically change passwords in a commercially reasonable manner and time, to prevent unauthorized access to the TRHC Platform. TRHC is not liable to Customer or any third party for damages arising from Customer’s use of multiple Access IDs.
- 4.3 Security. Customer will implement and maintain commercially reasonable security procedures for the transmission of Customer Data to the TRHC Platform. Customer will notify TRHC promptly upon becoming aware of any suspected security breach regarding transmissions to or from the TRHC Platform.
- 4.4 Suspension of Access. TRHC may in its discretion suspend Customer’s access to, or reasonably restrict any use of, the TRHC Platform temporarily, in whole or in part, if, and so long as, in TRHC’s sole judgment, there is a security risk that may interfere with the proper continued provision of the TRHC Platform or Hosting Services or Customer is misusing the TRHC Platform, has breached this Agreement, or is or may be engaged in illegal activity. TRHC will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat at Customer’s cost.
- 4.5 Third Party Offerings. TRHC may directly or indirectly provide links to websites or applications and access to content, products and services from third parties, including other users, advertisers, affiliates and sponsors (“Third Party Products”). Customer acknowledges and agree that (a) access and use of Third Party Products may be subject to additional terms and conditions as made available by such third party providers, and (b) TRHC is not responsible for the availability or content of any such Third Party Products, including any related opinions, advice, statements or advertisements.
FEES AND PAYMENT TERMS.
- 5.1 Fees. Customer agrees to pay the fees set forth on Exhibit A of the Services Agreement (the “Fees”) in accordance with the terms and conditions set forth therein and this Article 5. Unless otherwise expressly set forth in the applicable exhibit, all Fees will be due and payable by Customer within thirty (30) days after their respective invoice date.
- 5.2 Taxes. Fees do not include any applicable taxes, and Customer will be responsible for paying any and all applicable sales, software license, use, value added, excise, property, withholding tax or any other taxes due in connection with the performance of this Agreement (“Taxes”) whether imposed on Customer or TRHC; provided, however, that Customer shall not be required to pay any Taxes applicable to TRHC’s net income. If TRHC pays any Tax that is payable by Customer in accordance with the foregoing, Customer shall reimburse TRHC for the amount of such Tax upon receiving an invoice therefor.
- 5.3 No Setoff. All amounts due under this Agreement to be paid by Customer to TRHC will be paid in full and Customer will not be entitled to assert any credit, set-off or counterclaim against TRHC in order to justify withholding payment of any such amount in whole or in part. If any Fees are not paid by Customer by the due date, TRHC may, without prejudice to any other right or remedy, charge interest on a day to day basis both before and after any judgment at a rate equal to the lesser of 1.5% per month or the maximum amount permitted by Applicable Law, from the due date for payment to the date of actual payment. For the avoidance of doubt, Fees assessed on a periodic basis (e.g., annually) shall be payable by Customer throughout the applicable Term, in accordance with this Agreement, regardless of whether Customer has used any TRHC Property or Services.
- 6.1 Ownership of TRHC Property. TRHC owns and shall retain all ownership right, title, and interest in and to the TRHC Property and all Intellectual Property Rights embodied therein or associated therewith. Customer shall have no right, title, or interest in or to the TRHC Property other than the limited license rights expressly set forth in this Agreement.
- 6.2 Ownership of Customer Data. Customer owns and shall retain all ownership right, title, and interest in and to the Customer Data and any and all Intellectual Property Rights embodied therein. TRHC shall have no right, title, or interest in or to the Customer Data other than the limited license rights expressly set forth in this Agreement.
- 6.3 License to Customer. Subject to the terms and conditions of this Agreement, TRHC hereby grants to Customer a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use the Reports, Output and, unless otherwise expressly set forth in the applicable exhibit, any Deliverables, provided or otherwise made available to Customer by TRHC in connection with this Agreement for Customer’s internal business purposes in accordance with the applicable Documentation and exhibit, if any.
- 6.4 License to TRHC. Customer hereby grants to TRHC and its Affiliates a fully-paid up, nonexclusive, irrevocable, transferrable, worldwide right and license to process, reproduce, store, distribute, display, perform, modify, adapt, translate, create derivative works from, transmit, make available and otherwise use Customer Data during the Term in connection with TRHC’s provision of the TRHC Property and Services and performance of TRHC’s obligations under this Agreement and for purposes of developing, maintaining and improving the TRHC Property and Services provided to Customer under this Agreement. In addition, Customer hereby grants to TRHC and its Affiliates a perpetual, irrevocable, worldwide, royalty-free, sublicensable, transferrable, non-exclusive right to process, reproduce, store, distribute, display, perform, modify, adapt, translate, create derivative works from, transmit, make available, commercialize, offer for license or sale, sell, license, sublicense and otherwise use the Customer Data during the Term and after any expiration or termination of this Agreement, including without limitation for purposes of developing, maintaining and improving TRHC’s products and services as they may be provided to Customer or other customers of TRHC; provided that all such use of the Customer Data will be aggregated and anonymized in a manner that does not designate or identify Customer or its Authorized Users as the source of such data. For clarity, without limitation of the foregoing rights, TRHC will not identify Customer or its Authorized Users as the source of any Customer Data used in such aggregated and anonymous data disclosed to third parties.
REPRESENTATIONS AND WARRANTIES.
- 7.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it has the full power and authority to enter into this Agreement; (b) the individual executing this Agreement on its behalf is authorized to do so; and (c) this Agreement constitutes a valid and legally binding obligation of such party, enforceable against such party in accordance with its terms.
- 7.2 Additional Representations and Warranties of TRHC. TRHC represents, warrants and covenants that: (a) the TRHC Platform will perform substantially in accordance with the applicable Documentation during the applicable Term and meet the success metrics set forth on Exhibit B (“Success Metrics”) when used in accordance with the terms and conditions of this Agreement, (b) the Reports and Deliverables will substantially conform to any applicable requirements set forth in the applicable Documentation during the Term, (c) the Services will be provided in a professional, workmanlike manner with reasonable care and skill, using suitably qualified personnel, and (d) the TRHC Platform will be reasonably accessible by Customer during the applicable Term except for scheduled downtime for routine maintenance and service. For any breach of the foregoing warranties, Customer’s sole and exclusive remedy is that TRHC will, at TRHC’s sole option, (i) make such alterations, modifications or adjustments to the TRHC Property or Services to cure the breach without materially reducing the features or functionality thereof, (ii) replace the TRHC Property or Services with a substantially similar substitute that conforms to such warranty; or (iii) if none of the foregoing remedies can be achieved after the exercise of commercially reasonable efforts, terminate this Agreement and refund to the Customer: (A) all amounts paid by the Customer to TRHC as Fees attributable to the license or subscription with respect to the affected TRHC Property, less an amount equal to depreciation of such license or subscription Fees calculated on a three-year straight-line basis from the date of applicable order for Services, and (B) a pro rata portion of any prepaid Fees for Support Services for the then-current annual Support Services period.
- 7.3 Additional Representations and Warranties of Customer. Customer hereby represents, warrants and covenants to TRHC that: (a) Customer has collected, compiled and generated all the Customer Data in compliance with all applicable federal, state and local laws, rules, regulations, ordinances, statutes, treaties or orders (“Applicable Laws”) and any applicable privacy policies; (b) the provision of all Customer Data to TRHC hereunder is in compliance with all Applicable Laws and any applicable privacy policies; (c) Customer has all rights necessary to grant TRHC the right to use and disclose all Customer Data in accordance with the terms of this Agreement; (d) all Customer Data provided or otherwise made available to TRHC is accurate and complete and (e) unless otherwise expressly agreed by the parties in writing, Customer Data shall not contain a person’s individually identifiable information, or any information that can, together with the other Customer Data, identify a specific individual.
- 7.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, 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. TRHC WILL NOT BE RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS OR OTHER THIRD PARTY SOFTWARE, SERVICE OR HARDWARE TRHC PROVIDES OR USES IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, TRHC DOES NOT WARRANT THAT (A) THE OPERATION OF THE TRHC PROPERTY OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) ANY DEFECT OR MALFUNCTION IN THE TRHC PROPERTY OR SERVICES IS CORRECTABLE OR WILL BE CORRECTED.
- 7.5 Customer Solely Responsible for Compliance, Performance, Safety and Other Inspections and Assessments. Customer acknowledges and agrees that Customer retains sole and exclusive authority and responsibility for inspections, assessments, submissions and other determinations regarding compliance, performance and safety of any equipment, hardware or other devices in connection with which Customer utilizes the TRHC Property or Services (“Underlying Equipment”). TRHC is not responsible for and hereby disclaims all responsibility and liability for the Underlying Equipment and any determinations as to compliance, performance, safety or otherwise relating to the Underlying Equipment. Customer acknowledges and agrees that such determinations are solely within Customer’s control, that all Reports and Output provided in connection with this Agreement are for informational purposes only, and that, among other appropriate measures, Customer should engage subject matter experts to review any Output and Reports before making any determinations relating to the data and findings provided therein.
- 8.1 Indemnification by TRHC. TRHC will indemnify, defend, and hold harmless Customer and its Affiliates and each of their respective officers, directors, employees, and agents (collectively, the “Customer Indemnified Parties”) from and against all third-party claims, suits, demands and actions (collectively, “Claims”) brought against the Customer Indemnified Parties or tendered to the Customer Indemnified Parties for defense and/or indemnification, and for all resulting damages, fines, penalties, judgements, assessments, losses, liabilities, costs and expenses (including reasonable attorney and professional fees) (collectively “Losses”) incurred by the Customer Indemnified Parties in connection with such Claims, to the extent resulting from (a) a claim that the TRHC Property or Services infringe, misappropriate or violate any Intellectual Property Rights of any third party, (b) TRHC’s failure to comply with Applicable Laws in connection with its performance under this Agreement, or (c) TRHC’s gross negligence, willful misconduct or fraud. Notwithstanding the foregoing, TRHC shall have no liability to the Customer for any Claim to the extent that such Claim: (i) arises out of Customer’s use of the TRHC Property or Services other than as expressly permitted under this Agreement and the Documentation or any other unauthorized use, reproduction, or distribution of the TRHC Property or Services; (ii) arises out of any modification or alteration of the TRHC Property or Services by anyone other than TRHC; (iii) arises out of the use of TRHC Property in combination with any other software or equipment not approved in writing by TRHC; or (iv) would have been avoided by use of the then-current release of any software or if the Customer had followed TRHC’s reasonable written instructions ((i) through (iv), collectively, “Excluded Claims”).
- 8.2 Indemnification by Customer. Customer will indemnify, defend, and hold harmless TRHC and its Affiliates and each of their respective officers, directors, employees, agents, licensors and licensees (collectively the “TRHC Indemnified Parties”) from any and against all Claims brought against the TRHC Indemnified Parties, or tendered to the TRHC Indemnified Parties, for the defense and/or indemnification, and for all resulting Losses incurred by the TRHC Indemnified Parties in connection with such Claims, to the extent resulting from: (a) a claim that the Customer Data, Customer’s provision of the Customer Data to TRHC in connection with this Agreement or TRHC’s use of the Customer Data pursuant to the rights granted under this Agreement, fails to comply with Applicable Law or otherwise infringes, misappropriates or violates any rights of a third party, including any privacy rights or Intellectual Property Rights of any third parties; (b) Customer’s use of the TRHC Property or Services other than Claims subject to indemnification by TRHC under Section 8.1; (d) Excluded Claims; (e) Customer’s failure to comply with Applicable Laws in connection with its performance under this Agreement, or (f) Customer’s gross negligence, willful misconduct or fraud.
- 8.3 Terms of Defense and Indemnification. The party seeking indemnification pursuant to this Article 8 (as applicable, the “Indemnified Party”), will promptly notify the other party from whom indemnification is sought (as applicable, the “Indemnifying Party”), in writing, of any Claim for which the Indemnified Party believes that it is entitled to indemnification (provided that the Indemnified Party’s failure to provide such notice or to provide it promptly will relieve the Indemnifying Party of its indemnification obligations only if and to the extent that such failure actually prejudices the Indemnifying Party’s ability to defend the Claims). The Indemnified Party may employ counsel at its own expense to assist it with respect to any such Claim; provided, however, that if such counsel is necessary because of a conflict of interest of the Indemnifying Party or its counsel or because the Indemnifying Party does not assume control, the Indemnifying Party will bear the expense of such counsel. Notwithstanding anything else in this Article 8, if the Claim is one of multiple Claims in a lawsuit against any of the Indemnified Parties, some of which Claims may not be subject to the indemnity obligation under this Article, the Indemnified Party may, at its sole discretion, elect to solely control the defense, settlement, adjustment or compromise of the Claim, in which event: (a) the Indemnifying Party agrees to cooperate with the Indemnified Party’s sole control and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of any such controversy or proceedings, and (b) the Indemnifying Party shall not be relieved of its indemnification and hold harmless obligations under this Article, and the Indemnifying Party shall remain responsible for its proportionate share of the Losses relating to the Claim and attributable to the Indemnifying Party’s indemnification obligations hereunder.
- 8.4 Options Upon Infringement Claim. In addition, if any of the TRHC Property or Services becomes, or in TRHC’s opinion is likely to become, the subject of an infringement or misappropriation Claim, TRHC may, at its own expense and option, elect to either:
- 8.4.1 procure the right for the Customer to continue using the TRHC Property or Services in accordance with the provisions of this Agreement;
- 8.4.2 make such alterations, modifications or adjustments to the TRHC Property or Services so that the infringing product or technology becomes non-infringing without a material reduction in features or functionality thereof;
- 8.4.3 replace the TRHC Property or Services with a non-infringing substantially similar substitute; or
- 8.4.4 if none of the above remedies can be achieved after the exercise of commercially reasonable efforts, terminate this Agreement and refund to the Customer: (a) all amounts paid by the Customer to TRHC as Fees attribution to the license or subscription with respect to the affected TRHC Property, less an amount equal to depreciation of such license or subscription Fees calculated on a three-year straight-line basis from the date of the applicable order for Services, and (b) a pro rata portion of any prepaid Fees for Support Services for the then-current annual Support Services period.
- 8.5 Sole Remedy. THIS ARTICLE 8 STATES TRHC’S ENTIRE LIABILITY, AND THE CUSTOMER’S SOLE REMEDIES, FOR ANY INFRINGEMENT OR ALLEGED INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS IN RELATION TO THE TRHC PROPERTY OR SERVICES.
- 9.1 Definition. “Confidential Information” means all confidential or proprietary information disclosed by or on behalf of a party (in this capacity, the “Disclosing Party”) to the other party (in this capacity, the “Receiving Party”) or its Representatives (as defined below), whether orally, in writing or in any other format or medium, in connection with the performance of this Agreement, that is identified as confidential or is reasonably apparent to be confidential given the nature of such information and the circumstances of disclosure. Confidential Information will not, however, include any information that (a) at the time of disclosure hereunder is generally known to the public or thereafter becomes generally known to the public without breach of this Agreement by the Receiving Party or any of its Representatives, (b) was known to the Receiving Party at the time of its disclosure by or on behalf of the Disclosing Party hereunder without breach of any obligation owed to the Disclosing Party, (c) is received by the Receiving Party or any of its Representatives from a third party without breach of any obligation of confidentiality owed to the Disclosing Party with respect to such disclosure or (d) was independently developed by the Receiving Party or any of its Representatives without reference or use of the Disclosing Party’s Confidential Information. For the avoidance of doubt, (i) the terms and conditions of this Agreement will be deemed the Confidential Information of each party, (ii) the TRHC Property is the Confidential Information of TRHC, and (iii) without limitation of the rights granted under Section 6.4, the Customer Data is the Confidential Information of Customer.
- 9.2 Permitted Use. The Receiving Party shall: (a) use the Disclosing Party’s Confidential Information solely to accomplish the purpose of this Agreement or as otherwise permitted under the express terms of this Agreement; (b) not disclose the Disclosing Party’s Confidential Information to any third party without first obtaining the written consent of the Disclosing Party, except as otherwise expressly permitted herein; and (c) protect the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care used to protect its own confidential and/or proprietary information from unauthorized use or disclosure, but in no event with less than reasonable care. The Receiving Party will be permitted to disclose the Disclosing Party’s Confidential Information to its Affiliates and those of its and its Affiliates’ respective directors, officers, employees, agents, subcontractors and consultants (with respect to a Party, together with such Party’s affiliates, collectively, such Party’s “Representatives”) who need to know such Confidential Information in order to accomplish the purpose of this Agreement; provided, that such persons or entities are bound to the Receiving Party by obligations of confidentiality and non-use with respect to such Confidential Information that are substantially similar to those contained herein. The Receiving Party shall be liable for any unauthorized use or disclosure of the Disclosing Party’s Confidential Information by any of the Receiving Party’s Representatives. The Receiving Party shall notify the Disclosing Party in writing promptly upon learning of any such unauthorized use or disclosure of the Disclosing Party’s Confidential Information and shall use all reasonable efforts to mitigate such unauthorized use or disclosure and prevent any further unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Notwithstanding anything in this Agreement to the contrary, TRHC shall be permitted to (i) disclose Customer’s Confidential Information, on a limited basis, to TRHC’s lender(s) or prospective acquirer(s), provided that any such lender or prospective acquirer is bound by obligations of nondisclosure and limited use at least as stringent as those contained herein and (ii) use the Customer Data in accordance with Section 6.4.
- 9.3 Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is required pursuant to Applicable Law, or by order of a court or governmental or regulatory body of competent jurisdiction; provided, that the Receiving Party promptly notifies the Disclosing Party of such disclosure in writing and provides reasonable assistance to the Disclosing Party in seeking such protective action as it deems appropriate. Thereupon, the Receiving Party may only disclose such Confidential Information as is legally required and only to an authorized person, entity or agency, to the extent required by Applicable Law and subject to the maximum available confidentiality restrictions.
- 9.4 Return of Confidential Information. At any time upon the Disclosing Party’s request, the Receiving Party shall, at the Disclosing Party’s sole discretion: (a) return to the Disclosing Party all tangible or electronic Confidential Information of the Disclosing Party then in the possession of the Receiving Party or its Representatives, or (b) destroy all such Confidential Information, including any copies thereof, in accordance with the Disclosing Party’s instructions (and confirm such destruction in writing to the Disclosing Party). Notwithstanding the foregoing, the Receiving Party may retain copies of the Disclosing Party’s Confidential Information disclosed hereunder that are contained in routine system backups or are necessary to fulfill its ongoing obligations or exercise its ongoing rights under this Agreement (including without limitation the rights to Customer Data granted under Section 6.4), subject to the ongoing obligation to maintain the confidentiality of such information in accordance with the terms of this Section 9.
- 9.5 Publicity. TRHC shall have the right to issue an initial press release regarding the existence of this Agreement and/or may file the same with the United States Securities and Exchange Commission. Thereafter, neither party will be permitted to issue press releases of any kind referencing the other party, this Agreement, or the parties’ conduct under this Agreement without the express written permission of the other party. If the parties do agree to issue (or allow the other party to issue) any such press release, then such press release will be subject to each party’s prior written approval of both the content and the type of release.
TERM AND TERMINATION.
- 10.1 Initial Term. The initial term of this Agreement shall begin on the Effective Date and shall continue for the period ending on the date one (1) year after the Effective Date, unless terminated as provided for herein (the “Initial Term”). Thereafter this Agreement shall automatically renew for additional one (1) year periods unless notice of termination is given at least sixty (60) days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable (each, a “Renewal Term” and together with the Initial Term, collectively, the “Term”).
- 10.2 Termination for Cause. In the event that either party is in material breach of the terms of this Agreement, the non-breaching Party may terminate this Agreement on thirty (30) days prior written notice (or fifteen (15) days in the event of a breach of Customer’s payment obligations hereunder); provided however, that this Agreement shall not be terminated as provided for herein in the event that the breaching Party cures the breach to the reasonable satisfaction of the non-breaching Party within such notice period or takes material steps reasonably satisfactory to the non-breaching Party to do so within such notice period.
- 10.3 Insolvency Event. Either party may terminate this Agreement by delivering written notice to the other party upon the occurrence of any of the following events: (a) a receiver is appointed for the other party or its property; (b) the other party makes a general assignment for the benefit of its creditors; (c) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) the other party becomes insolvent or is liquidating, dissolving or ceasing business operations.
- 10.4 Effects of Termination. In the event of any expiration or termination of this Agreement, Customer and its Affiliates shall have no more access to the TRHC Property, their passwords will become invalid and the Documentation and any TRHC Confidential Information must, within twenty (20) days, be returned to TRHC.
- 10.5 Survival. All rights and obligations that accrued prior to termination or expiration of this Agreement or by their nature are intended to survive the termination or expiration of this Agreement, shall survive expiration or termination of this Agreement, including without limitation the provisions of Sections 1, 2, 4.4, 5, 6, 7.4, 7.5, 8, 9, 10.5, 10.6, 10.7, 11, and 12.
- 10.6 Rights in Bankruptcy. Termination of this Agreement or any of the obligations hereunder by either party shall be in addition to any other legal or equitable remedies available to such party pursuant to this Agreement. All rights and licenses to the Customer Data granted under or pursuant to this Agreement are, and shall be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, 11 U.S.C. § 101 et seq., licenses of rights to “intellectual property” as defined under Section 101(35A) of the Bankruptcy Code; and the Customer Data is, and shall be deemed to be, “embodiments” of “intellectual property” for purposes of same. TRHC shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code or equivalent legislation in any other jurisdiction. Without limiting the generality of the foregoing, Customer acknowledges that the rights and licenses granted to TRHC pursuant to this Agreement shall not be affected by Customer’s rejection of this Agreement in bankruptcy, and shall continue subject to the terms and conditions of this Agreement.
LIMITATIONS OF LIABILITY.
- 11.1 Disclaimer of Damages. IN NO EVENT SHALL TRHC BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES OF ANY KIND ARISING UNDER ANY THEORY OF LIABILITY (INCLUDING TORT), INCLUDING WITHOUT LIMITATION DAMAGES OR LOSSES FOR LOSS OF PROFITS, LOSS OF PRODUCTION OR EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF BUSINESS DATA OR INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF TRHC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- 11.2 Limitation of Liability. EXCEPT FOR AMOUNTS PAYABLE TO THIRD PARTIES AS A RESULT OF TRHC’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1(A), TRHC’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID BY THE CUSTOMER TO TRHC UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
- 11.3 Applicability. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- 12.1 Independent Contractors. The parties to this Agreement are independent contractors. Neither party shall have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other party. This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of a business organization or agency relationship.
- 12.2 Force Majeure. Neither of the parties shall be considered in default of performance under this Agreement (other than performance of obligations to pay Fees) to the extent that such performance is delayed or prevented by circumstances or events beyond its reasonable control, including, without limitation, fire, flood, earthquake or similar natural disasters, riot, war, terrorism, civil strife, labor disputes or disturbances, material shortages or rationing, governmental regulations, communication or utility failures, or casualties.
- 12.3 Equitable Relief. Each party acknowledges and agrees that its breach of any confidentiality or proprietary rights provision of this Agreement may cause the other party irreparable damage, for which the award of damages may not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
- 12.4 Notices. Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight courier service (e.g., Federal Express), or by first class mail (certified or registered), to the other party addressed as set forth below or to such other address of which a party provides notice to the other party. Notices will be effective upon receipt.If to TRHC:
TRHC OpCo, Inc.
228 Strawbridge Drive
Moorestown, NJ 08057
ATTN: General CounselIf to Customer:
At the most recent address provided to TRHC.
- 12.5 Waiver and Modification. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties.
- 12.6 Assignment. Customer shall have no right to transfer or assign this Agreement or the Customer’s rights or obligations under this Agreement in whole or in part without TRHC’s express prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), and any attempted transfer or assignment in violation of the foregoing shall be null and void. TRHC may transfer, assign or subcontract this Agreement or TRHC’s rights or obligations under this Agreement, in whole or in part, without the consent of Customer. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
- 12.7 Severability. If for any reason any provision of this Agreement is adjudicated to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
- 12.8 Controlling Law and Venue. This Agreement and any dispute or action related thereto shall be governed, controlled, interpreted and defined by and under the laws of the State of New Jersey, without regard to the conflicts of laws provisions thereof. The parties agree that this Agreement is not governed by the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of both of which is expressly excluded and disclaimed. Any claim, action, suit or proceeding under this Agreement shall be brought only in the state and federal courts located in New Jersey.
- 12.9 Headings. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
- 12.10 Entire Agreement. This Agreement, including all exhibits or attachments hereto or thereto, all of which are hereby incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter.
EXHIBIT A – MEDWISE TRAINING
As a condition of the License and prior to accessing and using MedWise, Authorized User Pharmacists are required to complete educational activities to become “Certified MedWise Advisor Pharmacists” through TRHC University. Through TRHC University, TRHC will conduct ten (10) hours of online training, including eight (8) hours of CE-accredited case discussions for Client pharmacies in order for its Authorized User Pharmacists to become Certified MedWise Advisor Pharmacists.
The CE-accredited online curricula for the MedWise Advisor Pharmacist Certification includes modules on the following topics:
- Introduction and MedWise Visualization Demonstrations
- Competitive Inhibition Burden
- Aggregated Anticholinergic Burden and Aggregated Sedative Burden
- Aggregated Long QT Syndrome
- Pharmacokinetic Case Examples
- MedWise Tutorial
- Clinical Post Assessment
- Clinical Case Assessment