Terms and Conditions
License
We, PSGA, Inc., Inc grants to Clients a non-transferable, non-exclusive right to use the PSGA, Inc. license subject to the Terms and Conditions set forth herein.
Fees
Clients to pay PSGA, Inc. support fees each month beginning the month the System is installed for Customer’s use and continuing throughout the term hereof; provided however, beginning one (1) year after the Effective Date hereof, PSGA, Inc. shall have the right to increase the monthly support fee once every 12 months by five percent or the CPI (all items), whichever is greater. All invoices are Due Upon Receipt.
Services
PSGA, Inc. shall have the right to add or change functionality to the System at times determined by PSGA, Inc.
Term
The initial term of the license under this Agreement shall be twelve (12) months commencing on the Effective Date and ending on the last day of the 12th month thereafter. Upon the expiration of the initial term, this Agreement shall automatically renew for successive twelve (12) month terms unless either party gives the other party written notice of its intent not to renew at least sixty (60) days prior to the renewal date.
Termination
PSGA, Inc. may terminate this Agreement and declare all amounts then due hereunder for the remaining term, immediately due and payable in the event of any of the following:
(a) failure of Customer to pay any fee or other payment hereunder when due, which failure continues for seven (7) days after written notice to Customer of such default.
(b) any breach by Customer of any other covenant, warranty, or other term hereunder, which breach continues for thirty (30) days after written notice to Customer thereof; or
(c) Any bankruptcy or insolvency proceedings for Customer.
In the event Customer is in default hereunder, PSGA, Inc. shall not be required to provide Customer with any services in connection with the System. Upon termination of this Agreement, the license to use the System shall terminate, and Customer and its customers shall no longer have access to the System website. PSGA, Inc. and Customer acknowledge and agree that the nature of the services provided for herein may now or hereafter necessitate the storage of data and other information relating to the Customer’s customers. To the extent PSGA, Inc. is required to convert or store any data or information of Customer’s customers upon termination hereof, Customer agrees to reimburse PSGA, Inc. for all costs and expenses incurred in connection any such conversion or storage.
Warranty
PSGA, Inc. will use due care in performing all services required hereunder and agrees that it will, at its expense, use its best efforts to correct any errors to the extent that such errors are due to the malfunction of PSGA, Inc.’s server, operating systems, or programs, or to errors by PSGA, Inc.’s employees or agents. Corrections shall be limited to recreation of data or program files. This Limited Warranty is exclusive and is in lieu of all other warranties, and Customer hereby waives all other warranties, expressed, implied, or statutory, including any implied warranties of merchantability or fitness for a particular purpose, relating to the System and any required services hereunder.
Liability Limit
In no event shall PSGA, Inc. be liable to Customer for indirect, special, punitive, or consequential damages (including loss of profits, loss of data, or damage to business reputation), even if PSGA, Inc. has been advised of the possibility of certain damages. Due to the nature of the services being provided by PSGA, Inc., it is agreed that in no event shall PSGA, Inc. be liable for any claim, loss, correction, damage, or expense caused by PSGA, Inc.’s performance or failure to perform hereunder, which is not reported by Customer within thirty (30) days of such performance or failure to perform. Neither party shall be deemed to be in default of any provisions of this Agreement or be liable to the other party or to any third party for any delay, failure in performance, or interruption of performance resulting directly or indirectly from acts of God, war, insurrection, riot, strikes, civil disturbance, interruption of electrical power or communications, or other technical causes beyond the control and without the fault or negligence of a party. Liability of PSGA, Inc. in any and all categories and for any and all causes arising out of this Agreement shall not in the aggregate exceed the total monthly service charges paid by Customer to PSGA, Inc. during the preceding twelve (12) month period.
Use of Customer Data
Customer hereby stipulates and agrees that PSGA, Inc. may use and disclose, and may authorize its agents, affiliates, subcontractors (including any downstream third party service provider) to use and disclose, except as otherwise prohibited by applicable law, any and all data and information, including, but not limited to, protected health information and other information of Customer’s customer(s), created or received by, disclosed, or otherwise made available to, PSGA, INC. or any agent, affiliate or subcontractor of PSGA, Inc. in connection with this Agreement, or any other arrangement or agreement between PSGA, Inc. and Customer. Without limitation, such use and disclosures shall include: (a) using data and information to provide data aggregation services as permitted by 45 CFR § 164.504(e)(2)(i)(B); and (b) using data and information to create information that is not individually identifiable health information under applicable federal law, and (c) disclosure to any third party not otherwise prohibited by law. Customer warrants that it has obtained or will obtain such authorization from its customers as may be required under applicable law to permit the Customer and/or PSGA, INC. to use and disclose such information.
Excessive Use of the Service
As the Service is a multi-tenant service offering on shared databases, Customer may not use the Service in excess of limits or thresholds that PSGA, Inc. considers commercially reasonable for the Service. If PSGA, Inc. reasonably concludes that a Customer’s use is excessive and/or will cause immediate or ongoing performance issues for one or more of PSGA, Inc.’ other customers, PSGA, Inc. may slow down or throttle Customer’s excess use until such time that Customer’s use stays within reasonable limits. If Customer’s particular usage pattern requires a higher limit or threshold, then the Customer should procure a subscription to the Service that accommodates a higher limit and/or threshold that more effectively aligns with the Customer’s actual usage pattern.
HIPAA
To the extent the nature of the relationship between Customer and PSGA, Inc. involves the use and disclosure of Protected Health Information (as that term is defined in 45 C.F.R. Section 160.103), each party agrees to execute a mutually agreeable Business Associate Agreement.
Indemnification
Customer assumes liability for and hereby agrees to indemnify and hold PSGA, Inc. harmless for any and all claims, actions, losses, damages, including reasonable attorneys’ fees, obligations, liabilities and liens arising out of any act or omissions of Customer its employees or agents or customers. Furthermore, Customer hereby releases and discharges PSGA, Inc. from and against any and all claims, actions, losses, damages, obligations, and liabilities, including without limitation, reasonable attorneys’ fees, now existing or hereafter arising, that arise out of or are related to the System, regardless of whether such claims, actions, losses, damages, obligations, or liabilities are caused or alleged to be caused by the sole or concurrent negligence of PSGA, Inc., its employees or agents, unless occasioned solely by the gross negligence or willful misconduct of PSGA, Inc.. These provisions shall survive termination of this Agreement with respect to events occurring prior to such termination.
Compliance With Laws
Customer and its agent(s) shall always during the term of this Agreement strictly adhere to, and comply fully with, all applicable federal, state and local rules, regulations and laws, Executive Orders and implementing regulations as they currently exist and may hereafter be amended, including, but not limited to, those pertaining to Customer’s customers’ rights to, and privacy and security of, any and all data and other information about such customers.
Relationship of Parties
Nothing contained in this Agreement shall be construed as creating a joint venture, partnership or employment arrangement between the parties hereto, nor shall either party have the right, power or authority to create any obligation or duty, expressed or implied, on behalf of the other party hereto.
Notices
Notices required to be given pursuant to this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally, transmitted by confirmed facsimile, or sent by a nationally recognized overnight courier service, or by registered or certified mail, postage prepaid, to the addresses set forth above.
Waiver
No failure on the part of PSGA, Inc. to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof or modify the terms of this Agreement. The exercise of any one remedy shall not be deemed to waive or preclude the exercise of any other remedy.
Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to any choice of law provisions thereof, or any other principle that could require the application of the law of any other state. This Agreement is performable in Orange County, Florida, which shall be the exclusive venue for any actions or proceedings relating to this Agreement.
Data from Third Party Sources
PSGA, Inc. uses data sources, both public and commercial, in some PSGA, Inc. products such as RxConnexion, BonaRx and TabulaRx.to provide Customer with enhanced services. This data is to be used by the Customer in delivering pharmaceutical care such as Pharmacy Collaborative Practice, Medication Therapy Monitoring (“MTM”) or business analytics.
Severability
If any provision hereof is found to be invalid or unenforceable pursuant to any judicial, administrative, or other governmental decree or decision, rule or law, the remainder of this Agreement shall remain valid and enforceable according to its terms. It is expressly understood and agreed that each provision of this Agreement that provides for a disclaimer of warranties, limitation on liability, or exclusion of damages is intended by the parties to be severable and independent of any other provision and to be enforced as such.
Confidentiality
Customer shall not divulge or make available to any party other than PSGA, Inc. or use for their own purposes, any documents or Confidential Information or other business data of PSGA, Inc. furnished to Customer under this Agreement without the prior written consent of PSGA, Inc. and shall keep the same in strictest confidence, except insofar as such documents and material, or any part thereof, have been previously published, become part of the public domain, or have been provided under an obligation created by court or governmental action. “Confidential Information” as that phrase is used herein, means and includes, (whether or not identified as confidential, and whether or not in writing and whether disclosed to the other party before or after the effective date of the Agreement, any information disclosed by PSGA, Inc. to Customer either directly or indirectly in writing, orally, or by inspection of tangible objects (i) that PSGA, INC. identifies as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself including, but not limited to: intellectual property, technology and/or business of PSGA, Inc. including, but not limited to know-how, inventions, discoveries, formulae, ideas, designs, drawings, plans, reports, business, marketing, sales or financial information which PSGA, INC. maintains as confidential and proprietary.
Proprietary Rights
Customer agrees that the System and all licensed materials (including, without limitation, databases, program statements, systems, products, services, layouts, designs, formats, developments, changes, documentation, software, websites, algorithms, report formats, modifications or new features relating thereto and know-how), as delivered by PSGA, Inc. or as subsequently updated, merged, substituted, or modified by PSGA, Inc. (other than Customer’s customer data or Customer’s proprietary marks included on the website), is, and shall remain, the confidential and proprietary property of PSGA, Inc. regardless of whether this information is marked as confidential or proprietary. Proprietary information shall include (a) the terms of this Agreement (but not the existence thereof) and all information disclosed by PSGA, Inc. to the Customer pursuant to this Agreement; (b) any information or material that would give a third party some competitive business advantage or the opportunity of obtaining such advantage, or the disclosure of which could be detrimental to the interests of PSGA, Inc. to this Agreement and (c) any information or material known by Customer to be confidential or proprietary; or (d) any information or material which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. Customer acknowledges and agrees that PSGA, Inc.’ Proprietary Information constitutes confidential material and trade secrets of PSGA, Inc. PSGA, Inc. claims and reserves all rights and interest in and to the System and licensed material and all related documentation and Customer shall not take any action inconsistent with such ownership. PSGA, Inc. claims and reserves all benefits afforded under federal and international copyright law in all programming and documentation comprising the System as copyrighted works. No title or other ownership interest in the System and/or the licensed materials is now or hereafter transferred to Customer and Customer acknowledges and agrees that PSGA, Inc. owns and will continue to own all right, title and interest in and to the System. Customer will not contest the ownership of the System and licensed materials and will cooperate with PSGA, Inc. in defending PSGA, Inc.’s ownership rights to the System and Licensed Materials. The restrictions in this Agreement shall not be construed to supersede or eliminate any rights which PSGA, Inc. may have under applicable laws pertaining to trade secrets. Customer may not recreate, copy, duplicate or use the System, in whole or in part, except in compliance with this Agreement. Any and all use of the System by Customer shall always include all applicable PSGA, Inc. notices. Customer shall not remove or alter PSGA, Inc. proprietary notices and legends in and on the System and/or on any licensed materials. Customer may not copy or duplicate the System or licensed material, in whole or in part. Notwithstanding the foregoing, Customer acknowledges and agrees that PSGA, Inc. may apply copy-protection routines or devices to the System and/or licensed material. Customer shall not: (a)decompile, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the System and or licensed material; (b) circumvent any technological measure that controls access to the System or licensed materials; or (c) use the System and licensed material other than pursuant to the terms of this Agreement. Customer further agrees to keep the System and/or Licensed Materials free and clear of all claims, liens and encumbrances, and any act of Customer purporting to establish any claim, lien or encumbrance shall be void. In the event of a breach of any of the provisions of this Agreement, PSGA, Inc. shall be entitled, in addition to any other available legal or equitable remedies, to exparte injunctive relief without any requirement to post bond as a condition of such relief.
Maintenance of Records
The parties agree that PSGA, Inc. can maintain a copy of this Agreement and any books, documents, records and other data of Customer as may be required to be maintained by PSGA, Inc. by applicable law, for such periods as such laws may require.
Assignment
The parties agree that either may assign this Agreement to any parent, subsidiary, affiliate, or successor in interest (including a successor in interest to substantially all the assets of the assigning party). Except as noted, neither party may assign this Agreement, absent written consent of the other party, which will not be unreasonably withheld, conditioned, or delayed. Any attempted assignment without such consent shall be void.
Entire Agreement, Amendments
This Agreement consists of the entire Agreement, understanding, and representations, express or implied, between PSGA, Inc. and Customer regarding the subject matter hereof and supersedes all prior and contemporaneous communications between the parties including all oral or written proposals. No representation, warranty, promise, inducement, or statement of intention has been made by either party which is not embodied in this Agreement, and neither PSGA, Inc., on the one hand, or Customer, on the other hand, shall be bound by, or be liable for, any alleged representation, warranty, promise, inducement, or statement of intention not embodied herein. Any amendments to this Agreement must be in writing signed by both parties hereto.