Digital Pharmacist
Terms & Conditions
These Terms and Conditions (this “Agreement”) comprise a binding agreement between the registering pharmacy (“Pharmacy” or “you”) and RxWiki, Inc., a Delaware corporation with offices at 4315 Guadalupe Street, Suite #200, Austin, TX 78751 (“RxWiki”). IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, THEN DO NOT COMPLETE THE REGISTRATION PROCESS AND DO NOT USE THE DIGITAL PHARMACIST SERVICES. BY COMPLETING THE REGISTRATION PROCESS YOU, THE INDIVIDUAL REGISTERING THE PHARMACY, REPRESENTS AND WARRANTS THAT YOU HAVE THE RIGHT TO BIND PHARMACY TO THIS AGREEMENT.
1. Purpose. RxWiki has developed a suite of services comprised of the web and mobile software applications and other services listed in Exhibit A (the “Services”), that it makes available to pharmacies. For certain of these Services, RxWiki will charge Pharmacy a fee while other Services will be provided free of charge. The Services made available to Pharmacy shall be subject to this Agreement.
2. Services.
2.1 Designated Services. Subject to the terms of this Agreement, and the payment of all Fees due, RxWiki will make the Services available to Pharmacy during the term of this Agreement (the “Term”). Additional terms and conditions applicable to each Service are set forth in Exhibit A, which is hereby incorporated by reference.
2.2 Advertising and Sponsorship. Pharmacy understands and acknowledges that RxWiki intends to monetize the Services by placing advertisements within the suite of web and mobile software applications that are included in the Services, by directing end users to websites owned by RxWiki and its affiliates, and by obtaining sponsors for the Services. All fees paid to RxWiki for advertising and sponsorship shall belong solely to RxWiki, and Pharmacy will have no right, title, or interest in or to any such fees.
2.3 Trademark License.
(i) In order to assist RxWiki in providing certain Services, Pharmacy may provide RxWiki with Pharmacy’s trademarks, service marks, trade names, logos, company names, or other similar designations (the “Pharmacy Marks”). By providing the Pharmacy Marks to RxWiki, Pharmacy hereby grants RxWiki a limited, non-exclusive, sublicensable, irrevocable (during the Term of this Agreement), royalty-free license to use, copy, modify, display, and distribute the Pharmacy Marks for the purpose of providing the Services. RxWiki may modify how the Pharmacy Marks appear in the Services in its sole discretion. RxWiki will provide Pharmacy with samples of uses of the Pharmacy Marks upon request, and will take reasonable steps to address any concerns that Pharmacy may have regarding the use of the Pharmacy Marks.
(ii) RxWiki 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 RxWiki to Pharmacy (the “RxWiki Marks”) solely for marketing purposes to advertise that Pharmacy is a user of the Services. Upon request, Pharmacy shall provide RxWiki with samples of the uses of the RxWiki Marks, and shall adjust all such uses as requested by RxWiki. Pharmacy shall also comply with any trademark usage guidelines and quality control standards provided by RxWiki. The RxWiki Marks are trademarks of RxWiki and may not be used except as expressly set forth in this Section.
2.4 Modifications and Suspension of Services. RxWiki may add, modify, or remove any features and functionalities of the Services at any time. RxWiki may also suspend or discontinue any of the Services, in whole or in part, at any time.
2.5 Privacy and Communications with End-Users. Certain Services may enable Pharmacy to communicate directly with end users. The Services are not currently designed with the security or encryption necessary for sending confidential or health information, and should not be used to communicate confidential or Protected Health Information (as that term is defined in the Health Insurance Portability and Accountability Act). Both parties agree not to share with, or solicit from the other party, any individually identifiable information obtained pursuant to the Services, if any. Pharmacy is solely responsible for any communications sent via the Services and shall indemnify, defend, and hold harmless RxWiki from and against all third-party claims arising out of Pharmacy’s communications through the Services.
2.6 Reservation of Rights. The web and mobile applications, the related underlying or enabling technology, the Active Code (as defined in Exhibit A), software, and other intellectual property used to facilitate the Services (the “Underlying Intellectual Property”) are owned or licensed by RxWiki and protected by applicable copyright laws, international treaty provisions, and other applicable laws. Except as expressly provided in this Agreement, nothing in this Agreement conveys any right, title, or interest (including any implied licenses) in or to the Services, the Materials (as defined in Section 5.1), the RxWiki Marks, or the Underlying Intellectual Property.
3. Incentive Program. RxWiki may offer opportunities for Pharmacy to earn incentive payments, rewards or compensation in the future for the use or promotion of the Services. To be eligible for these opportunities, Pharmacy must achieve the following participation goals:
(i) Achieve five hundred followers (i.e. Facebook Likes, Twitter Followers, or Google+ Circles) on each of Pharmacy’s designated Social Media Channels (as defined in Exhibit A).
(ii) Mobile+. Pharmacy must achieve five hundred user downloads of the Mobile+ mobile application.
4. Fees and Payment.
4.1 Fees. For certain Services, RxWiki will charge Pharmacy the monthly fees quoted by RxWiki (the “Fees”) for certain Services. RxWiki reserves the right to change the Fees at any time in accordance with Section 9.3. If Pharmacy is a member of the National Community Pharmacists Association (“NCPA”), then the Social Media-as-a-Service (“SMaaS”) and Mobile+ Services will be provided to Pharmacy at no cost as a benefit of the Pharmacy’s NCPA membership. If Pharmacy is not a member of the NCPA, then Pharmacy will be charged the then-current Fees for the SMaaS and Mobile+ Services as invoiced by RxWiki.
4.2 Payment. For all fee-bearing Services, Pharmacy will pay the then-current Fees for each applicable Service. The Fees will be due on the first day of each month of the Term. RxWiki will charge Pharmacy’s credit card on file for the Fees on or about the first day of each month. Pharmacy is responsible for ensuring that the credit card information on file with RxWiki is current at all times. If RxWiki is unable to charge the credit card on file, then RxWiki will promptly notify Pharmacy. If Pharmacy has not provided valid credit card information, or has not otherwise paid the amount owed by the tenth day of the month, then the payment of the Fees will be considered late and will accrue interest daily at a monthly rate of 1.5%, or the highest interest rate allowed by law.
5. Indemnity.
5.1 Indemnification Obligations. RxWiki will indemnify, defend, and hold harmless Pharmacy from and against all third-party claims arising out of the information or materials provided via the Services (the “Materials”), provided such claims do not arise out of (i) content created by Pharmacy, (ii) deletions, changes, or additions to the Materials made by Pharmacy, or (iii) a breach of this Agreement by Pharmacy.
5.2 Process. RxWiki’s sole obligation for a claim subject to indemnity under this Agreement (each a “Claim”) shall be to (i) defend the Claim by providing and paying for counsel and paying all expenses associated with the defense, and (ii) pay any final judgment resulting from the Claim or any settlement entered into in accordance with this Section 5.2. Pharmacy shall (a) notify RxWiki in writing promptly after Pharmacy becomes aware of a Claim or the possibility thereof, provided however that a failure to promptly notify will only relieve RxWiki of its obligations hereunder to the extent its ability to defend the claim is prejudiced by the delay; (b) not enter into any settlement without RxWiki’s express written consent; (c) grant RxWiki sole control of the settlement, compromise, negotiation, and defense of the Claim; provided, however, that no settlement that affects the rights or interest of Pharmacy may be entered into without its written consent, and provided further that Pharmacy may participate in the defense with its own counsel and at its own expense; and (d) provide RxWiki with all information related to the claim that is reasonably requested by RxWiki.
6. LIMITED WARRANTY AND DISCLAIMER OF WARRANTIES. RxWiki represents and warrants that it will provide the Services in a good and workmanlike manner. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE SERVICES, MATERIALS, AND THE UNDERLYING INTELLECTUAL PROPERTY ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. RXWIKI EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. RXWIKI DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE SERVICES, THE MATERIALS, OR THE UNDERLYING INTELLECTUAL PROPERTY IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE UNINTERRUPTED OR ERROR FREE. PHARMACY’S SOLE REMEDY FOR ANY BREACH OF THE FOREGOING LIMITED WARRANTY IS FOR RXWIKI TO: (I) REPERFORM THE SERVICES; OR (II) REFUND THE FEES PAID TO RXWIKI BY PHARMACY (IF ANY).
7. LIMITATION OF LIABILITY. THE SERVICES AND MATERIALS ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT A SUBSTITUTE FOR MEDICAL ADVICE. IN NO EVENT WILL RXWIKI OR ANY OF ITS SUBSIDIARIES OR AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT WITHOUT LIMITATION, LOSS OF BUSINESS, OR LOSS OF PROFITS DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. EXCEPT FOR RXWIKI’S INDEMNITY OBLIGATIONS UNDER SECTION 5, RXWIKI’S LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR THE MATERIALS, ARISING UNDER ANY THEORY OF LAW (INCLUDING CLAIMS OF BREACH, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE), SHALL NOT EXCEED THE GREATER OF (I) THE FEES PAID TO RXWIKI BY PHARMACY DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE, OR (II) $50 (USD). Pharmacy acknowledges that this represents a reasonable allocation of risk between the parties and that RxWiki would not make the Services available for the fees charged (if any) but for this allocation of risk.
8. Term and Termination.
8.1 Term and Termination. The term of this Agreement begins when Pharmacy completes the registration process and shall continue until terminated as permitted below. Either party may terminate this Agreement by providing written notice of termination if the other party materially breaches this Agreement and fails to cure the breach within thirty days of receiving written notice that describes the breach in reasonable detail. Either party may terminate this Agreement for convenience by providing the other party with written notice of termination at least ten days prior to the specified date of termination.
8.2 Effect of Termination. Upon any termination of this Agreement, RxWiki may stop providing news and information through the Services and may send a notice to all end users that informs them that updated news and information will no longer be available through the Services. Sections 2.5 and 2.6 as well as Articles 4 through 9, and any other rights or obligations of the parties in this Agreement that, by their nature, should survive termination of this Agreement, will survive any termination of this Agreement.
9. Miscellaneous.
9.1 Relationship of Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, Business Associate (as defined in HIPAA section 160.103), or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
9.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed as follows: (i) if to RxWiki, at 4315 Guadalupe Street, Suite #200, Austin, TX 78751; and (ii) if to Pharmacy, at the physical address or the email address provided upon registration. Pharmacy is responsible for updating RxWiki of any changes in Pharmacy’s email address, and for ensuring that Pharmacy’s email address is able to receive emails from RxWiki. Notices shall be deemed effectively given: (a) when received, if delivered by hand, sent by a nationally recognized overnight courier; (b) when sent, if sent via email to Pharmacy; or (c) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
9.3 Amendment and Modification. RxWiki reserves the right to modify this Agreement at any time. Any such changes will be effective thirty days after RxWiki sends notice of the change to the email address provided upon registration. If Pharmacy does not wish to be bound by the Agreement as modified, then Pharmacy can terminate this Agreement prior to the effective date of the change by providing written notice of termination to RxWiki. Any termination under this Section 9.3 will be effective upon RxWiki’s processing of the termination and discontinuation of the Services, but in no event will Pharmacy be subject to the amended terms if notice of termination is provided prior to the effective date of the change.
9.4 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. The word “including” in this Agreement shall be construed without limitation as “including, but not limited to.” This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
9.5 Assignment. Pharmacy may not assign this Agreement, or otherwise transfer any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without RxWiki’s prior written consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
9.6 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other, or further exercise thereof, or the exercise of any other right, remedy, power, or privilege.
9.7 Injunctive Relief. Pharmacy acknowledges and agrees that any use of the Materials or the Underlying Intellectual Property other than as expressly permitted by this Agreement would cause irreparable harm and significant injury to RxWiki. Accordingly, the parties agree that RxWiki shall be entitled to seek injunctive relief as a result of any such misuse by Pharmacy, without the requirement of securing or posting any bond, in addition to any other remedies that may be available to RxWiki at law or in equity.
9.8 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
9.9 Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision. Any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the state and federal courts of Austin, Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
9.10 Arbitration. Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The location of the arbitration shall be in Austin, Texas. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration or RxWiki’s right to seek injunctive relief in accordance with Section 9.7 from a court of appropriate jurisdiction. NEITHER PHARMACY NOR RXWIKI WILL HAVE THE RIGHT TO LITIGATE ANY CLAIM SUBJECT TO ARBITRATION UNDER THIS AGREEMENT IN COURT OR HAVE A JURY TRIAL ON THE CLAIM, OR TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED IN THE CODE OR PROCEDURES OF JAMS. FURTHER, PHARMACY WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. THE ARBITRATOR'S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT PHARMACY WOULD HAVE IF IT WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.
Rev. 108235 October 11, 2013
Exhibit A
to
Digital Pharmacist Service Agreement
Service Descriptions
Social Media-as-a-Service (SMaaS)
RxWiki’s Social Media-as-a-Service will allow RxWiki to provide social media services to Pharmacy through the Facebook, Twitter, and Google+ platforms (the “Social Media Channels”). RxWiki will distribute Pharmacy-branded content and digital videos related to medicines and conditions, customize news feeds, set up and activate social media profiles, and provide other social media-related services. Pharmacy hereby grants RxWiki the right to access and post directly to the Social Media Channels that Pharmacy has selected (e.g. Facebook, Twitter, and/or Google+). Pharmacy acknowledges that it will not have the opportunity to review information before it is posted to the Social Media Channels. Pharmacy will provide RxWiki with login information for the applicable Social Media Channels. If Pharmacy does not currently have accounts for any of the Social Media Channels it has selected, then RxWiki will create accounts on behalf of Pharmacy. Pharmacy hereby grants RxWiki permission to create accounts on the Social Media Channels that Pharmacy has selected.
Mobile+
RxWiki’s Mobile+ is a mobile application licensed to Pharmacy that is branded with Pharmacy Marks and is available to end users on Android and Apple iOS devices via Google Play or the Apple App Store. The Mobile+ mobile application, as customized for Pharmacy, may contain: (i) doctor-reviewed news that is automatically updated with content published by RxWiki and synchronized across the mobile application and all of Pharmacy’s Social Media Channels; (ii) the ability for end users to bookmark their favorite articles; (iii) the ability for end users to select conditions so that they may receive news that is most relevant to them; and (iv) the ability for end users to touch-to-call Pharmacy’s telephone number. Pharmacy acknowledges that it will not have the opportunity to review content before it is made available to end users through Mobile+.
Active News and Search Widget
Active News and Search Widget connect Pharmacy’s customers with the latest RxWiki content. Active News allows Pharmacy to integrate the latest RxWiki content directly on Pharmacy’s website and Active News automatically updates as content is published. Pharmacy acknowledges that it will not have the opportunity to review content before it is posted to Pharmacy’s website through Active News. Pharmacy can make certain changes to their selection of news provided through Active News at any time by contacting RxWiki for support. The Search Widget allows Pharmacy to integrate RxWiki medication, news, and information searching capabilities directly on Pharmacy’s website. Pharmacy acknowledges that it will not have the opportunity to review content before it is made available to end users through both Active News and Search Widget.
RxWiki will provide Pharmacy with software code (the “Active Code”) and information that Pharmacy can use to integrate Active News and Search Widget into Pharmacy’s website. RxWiki will provide Pharmacy assistance as reasonably requested to help Pharmacy achieve a successful implementation. However, RxWiki will not make any changes to, or perform work on, Pharmacy’s website. Pharmacy is solely responsible for testing and ensuring the interoperability and functionality of the Active Code as integrated into Pharmacy’s website. RxWiki hereby grants Pharmacy a term-limited, royalty-free, worldwide, limited license to copy and modify the Active Code for the sole purpose of implementing the Active News and Search Widget features on Pharmacy’s website. Pharmacy may not distribute, sublicense, transfer, or otherwise provide the Active Code to any third parties.