RelayHealth Rx Transaction Performance Monitor (SM)
These Terms of Access are between you (the “Subscriber”) and RelayHealth, and govern your use of the services provided by RelayHealth hereunder.
PLEASE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS (THIS “AGREEMENT”). BY CLICKING ON THE “I ACCEPT” BUTTON BELOW, YOU INDICATE YOUR ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS AND THAT YOU AGREE TO BE BOUND BY THEM, AND YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE THE REQUISITE AUTHORITY AND LEGAL CAPACITY TO BIND YOUR ORGANIZATION TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK “I REJECT” AT THE BOTTOM OF THIS AGREEMENT TO RETURN TO THE HOMEPAGE.
I. SERVICES PROVIDED ‑ GENERAL.
1.1 Subject to the terms and conditions contained herein and the pricing applicable to your account, including any revisions or supplements thereto issued from time to time, RelayHealth agrees to make available to Subscriber, the NDC Rx Transaction Performance Monitor service (the “Services”).
1.2 Services provided by RelayHealth do not include equipment or devices or charges for the transmission or receipt of Services by Subscriber. At its own expense, and independent of this Agreement, Subscriber will procure and obtain such necessary equipment and supplemental service including, but not limited to, modems, Internet access and appropriate telecommunications service.
II. TERM OF AGREEMENT, RENEWAL AND TERMINATION.
2.1 Subscriber acknowledges that RelayHealth intends that the Service shall be made available only to such RelayHealth customers having in effect a written agreement with RelayHealth governing RelayHealth’s network services provided to Subscriber (a “Service Agreement”). Provided that Subscriber is party to a current Service Agreement, this Agreement shall become effective on the date Subscriber clicks on the “I Accept” button located at the bottom of this Agreement, and shall remain in full force and effect for the term of the Service Agreement.
2.2 Except as provided in Section III below, RelayHealth may at its sole option terminate this Agreement or the Service Agreement if Subscriber fails to perform or to comply with the terms and conditions of this Agreement and if such failure is not cured within thirty (30) days after written notice. Termination of this Agreement shall not terminate Subscriber’s obligation to pay RelayHealth for all services performed under the Agreement prior to discontinuance of performance by RelayHealth due to termination. The terms of this Agreement may be changed by RelayHealth by written notice provided to you by RelayHealth, or by RelayHealth posting revised terms on a designated webpage(s); pricing terms may be changed by RelayHealth in accordance with Section III hereof. Subscriber’s continued use of the Services after either such occurrence indicates Subscriber’s acceptance of such revised terms and conditions and/or pricing.
2.3 In the event Subscriber becomes insolvent, is adjudicated bankrupt, files a voluntary petition in bankruptcy, has a receiver appointed for it, makes an assignment for the benefit of creditors, is subject to filing of an involuntary petition in bankruptcy which is not discharged within thirty (30) days after filing, or takes any action or is subject to any action equivalent to any of the foregoing, then, to the extent permitted by law, RelayHealth shall have the right, at its option, at any time thereafter, to terminate this Agreement and its obligations hereunder.
III. PRICES AND PAYMENT.
RelayHealth's charges for Subscriber's use of the Services provided hereunder each month are included in and subject to the prices and other terms set forth in the Service Agreement. All other terms and conditions related to support and maintenance services are subject to RelayHealth’s then current policies.
IV.
ADDITIONAL SUBSCRIBER OBLIGATIONS.
Subscriber will use the Services provided by RelayHealth hereunder only in accordance with applicable laws, regulations, and rulings, now or hereafter imposed. Subscriber shall use said Services in accordance with the conditions of use which may be established or specified by RelayHealth from time to time and as may be set forth in any manuals, materials, documents or instructions furnished by RelayHealth to Subscriber (electronically or otherwise). RelayHealth reserves the right to take all actions, including termination of Services pursuant to this Agreement, which it believes to be necessary to comply with applicable laws, regulations, rulings, and RelayHealth specifications as described above. Subscriber will request information from RelayHealth only in connection with the Services provided to Subscriber hereunder, and in connection with data that Subscriber is legally entitled to view and/or modify; Subscriber agrees that any such modifications shall be made in accordance with all applicable federal and state laws, rules, and regulations. Subscriber agrees to consider and treat all information received through the Services as confidential.
V.
CHANGES TO SERVICES.
RelayHealth reserves the right to change, add, or modify any particular Service or the manner in which such Service is delivered, as RelayHealth deems appropriate. RelayHealth also reserves the right to withdraw any particular Service.
VI.
FILE SECURITY.
RelayHealth reserves the right to issue and change regulations and procedures from time to time to improve security. Subscriber assumes full responsibility for selection and use of any account code or passwords as may be permitted or required by the particular Service involved. Subscriber agrees to keep confidential and not to disclose any code or passwords to third parties.
VII.
PROPRIETARY
AND CONFIDENTIAL INFORMATION.
Subscriber acknowledges and agrees that all information disclosed or otherwise made available by RelayHealth under this Agreement, including the terms of this Agreement, is proprietary and/or confidential to RelayHealth, and that such information shall not be disclosed by Subscriber or used for any purpose not expressly permitted herein, except as required by law or with the prior written consent of RelayHealth. Such information includes but is not limited to any user documentation provided to Subscriber hereunder, the terms and conditions of this Agreement, and the pricing for the Services. Irrespective of any termination or expiration of this Agreement, the foregoing covenant shall survive for a period of two (2) years for any information which does not qualify as a trade secret under applicable state law and shall apply for so long as any information which does qualify as a trade secret continues to so qualify. RelayHealth’s name, trademarks, tradenames, and logos are proprietary to RelayHealth and may not be used without RelayHealth’s prior written consent. All software used to provide the Services is herein identified as proprietary to RelayHealth and may not be copied or used in any way other than as specifically authorized in this Agreement.
VIII.
WARRANTIES
AND EXCLUSIVE REMEDIES.
RelayHealth makes no warranty or representation concerning the adequacy, completeness, usefulness, or sufficiency of any Services or information or results thereof provided hereunder. The Services, any information provided hereunder and the results thereof are provided on an AS IS, WHERE IS basis without any warranty of any type except that RelayHealth will correct, if possible, any errors which are due solely to malfunction of RelayHealth’s computers, operating systems or programs, or errors by RelayHealth’s employees or agents. Correction shall be limited to rerunning of the job or jobs and/or recreating of data or program files. RelayHealth shall not be responsible in any manner for errors or failures of proprietary systems and programs other than those of RelayHealth, nor shall RelayHealth be liable for errors or failures of Subscriber’s software or operational systems. THE WARRANTY SET FORTH IN THIS SECTION VIII IS EXCLUSIVE, AND THERE ARE NO OTHER WARRANTIES OF ANY TYPE WITH RESPECT TO THE SERVICES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. RELAYHEALTH DOES NOT WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. Should there be any failure in performance by RelayHealth or errors or omissions by RelayHealth with respect to the information being transmitted (because of negligence or otherwise), RelayHealth’s sole liability, and Subscriber’s exclusive remedy, shall be limited to RelayHealth’s use of commercially reasonable efforts to correct such failure in performance or errors or omissions.
IX.
EXCLUSIONS
AND LIMITATIONS OF LIABILITY.
9.1 IN NO EVENT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, SHALL RELAYHEALTH BE LIABLE FOR ANY CLAIM, LOSS, OR DAMAGE, ORDINARY, DIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR OTHERWISE, INCLUDING CLAIMS FOR LOST PROFITS, ARISING FROM THE PROVISION OF OR FAILURE TO PROVIDE SERVICES HEREUNDER, EVEN IF RELAYHEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBSCRIBER AGREES THAT RELAYHEALTH WILL NOT BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST SUBSCRIBER BY ANY OTHER PARTY. DUE TO THE NATURE OF THE SERVICES BEING PERFORMED BY RELAYHEALTH, IT IS AGREED THAT IN NO EVENT WILL RELAYHEALTH BE LIABLE FOR ANY CLAIM, LOSS, LIABILITY, CORRECTION, COST, DAMAGE, OR EXPENSE CAUSED BY RELAYHEALTH’S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER WHICH IS NOT REPORTED BY SUBSCRIBER WITHIN SEVEN (7) DAYS OF SUCH FAILURE TO PERFORM.
9.2 SUBSCRIBER ACKNOWLEDGES THAT, IN CONNECTION WITH THE SERVICES PROVIDED UNDER THIS AGREEMENT, INFORMATION MAY BE TRANSMITTED OVER LOCAL EXCHANGE, INTEREXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES AND OTHER DEVICES OWNED, MAINTAINED AND SERVICED BY THIRD PARTY LOCAL EXCHANGE AND LONG DISTANCE CARRIERS, UTILITIES, INTERNET SERVICE PROVIDERS, AND OTHERS, ALL OF WHICH ARE BEYOND THE CONTROL AND JURISDICTION OF RELAYHEALTH. ACCORDINGLY, RELAYHEALTH ASSUMES NO LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH THE SERVICES PROVIDED UNDER THIS AGREEMENT.
9.3 RELAYHEALTH SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH REGARD TO ACTIONS OR INACTIONS OF THIRD PARTIES.
9.4 THE LIABILITY OF RELAYHEALTH FOR ANY AND ALL CAUSES, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, WARRANTY OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES COVERED HEREIN, SHALL, IN THE AGGREGATE, NOT EXCEED ONE (1) MONTH’S AVERAGE BILLING TO SUBSCRIBER FOR THE SERVICES TAKEN OVER THE TWELVE (12) MONTHS PRECEDING THE MONTH IN WHICH THE DAMAGE OR INJURY IS ALLEGED TO HAVE OCCURRED, OR, IF THIS AGREEMENT HAS NOT BEEN IN EFFECT FOR TWELVE (12) MONTHS PRECEDING SUCH DATE, THEN OVER SUCH FEWER NUMBER OF PRECEDING MONTHS THAT THIS AGREEMENT HAS BEEN IN EFFECT.
X.
FORCE
MAJEURE.
RelayHealth shall not be liable to Subscriber by reason of any failure in performance of this Agreement in accordance with its terms if such failure arises out of causes beyond the reasonable control and without the fault or negligence of RelayHealth or its subcontractors. Such causes may include, but are not limited to, unavailability of communications facilities, acts of God, acts of the public enemy, Subscriber’s actions or failure to act, acts of civil or military authority, governmental priorities, fires, floods, strikes, unavailability of labor, materials, or energy sources, delay in transportation, unusually severe weather, riots or war.
XI. GENERAL PROVISIONS.
11.1 All of the terms and conditions contained herein shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, personal representatives, successors, and permitted assigns, including without limitation, any successor to either party resulting by reason of corporate merger or consolidation or incorporation of a partnership. Notwithstanding the foregoing, any assignment of this Agreement by Subscriber shall be void without the prior written consent of RelayHealth. RelayHealth shall have the right to assign this Agreement to a parent, affiliate, subsidiary, or successor in interest. The obligations of RelayHealth under this Agreement may be provided or fulfilled by any subcontractor of RelayHealth so long as RelayHealth retains full responsibility for such obligations.
11.2 If any part or parts of this Agreement are held to be invalid, illegal, or unenforceable, such part will be treated as severable, and the remaining parts of the Agreement shall continue to be valid and enforceable as to the parties hereto.
11.3 This
Agreement shall be construed and the rights and obligations of the parties
shall be determined in accordance with the substantive laws of the State of
11.4 Any
action of any kind by Subscriber against RelayHealth
arising as a result of this Agreement must be commenced within the minimum
period of time which parties may by contract lawfully agree upon under
applicable law as the period within which such suit must be commenced, or
within one (1) year from the date the right, claim, demand, or cause of action
shall first accrue, whichever is longer. No limitation shall apply to any
action for the payment of taxes.
11.5 RelayHealth's obligation to perform services hereunder is subject to all governmental requirements and restrictions that may now be or hereafter become applicable thereto.
11.6 Subscriber hereby agrees to indemnify and hold RelayHealth, its directors, officers, affiliates, agents and employees, harmless from and against any and all losses, liabilities, damages or expenses of any type (or claims of damage or liability) asserted against RelayHealth and arising out of information provided to RelayHealth by Subscriber, or any use or provision thereof to any third party, or any other act or inaction of Subscriber.
11.7 Subscriber agrees to reimburse RelayHealth for all costs and expenses, including reasonable attorneys’ fees and, where applicable, costs and fees associated with collection efforts, incurred by RelayHealth in enforcing RelayHealth’s rights or remedies under this Agreement.
11.8 Notices required to be given pursuant to this Agreement shall be effective when received, and shall be sufficient if given in writing, hand delivered, sent by First Class United States Mail or overnight courier service, postage prepaid. Notices to Subscriber shall be sent to the Subscriber name and address on file with RelayHealth. Refusal to accept delivery shall be deemed receipt. Notices to RelayHealth shall be addressed as follows:
RelayHealth
1564 N.E. Expressway
Attention: Legal Department
11.9 This Agreement (including the applicable pricing) contains the full understanding of the parties with respect to the services that are the subject of this Agreement. Neither the course of conduct between the parties nor trade usage shall act to modify or alter the provisions of this Agreement. No provision of this Agreement shall be deemed waived by RelayHealth unless such waiver is in writing and signed by a duly authorized officer of RelayHealth. In the event Subscriber issues a purchase order, memorandum, or instrument covering the Services herein provided, it is hereby specifically agreed and understood that such purchase order, memorandum, or instrument is for Subscriber's internal purposes only, and any and all terms and conditions contained therein, whether printed or written, shall be of no force or effect. Except as herein expressly provided to the contrary, the provisions of this Agreement are for the benefit of the parties hereto solely, and not for the benefit of any other person, persons, or legal entities.
PLEASE INDICATE YOUR ACCEPTANCE OR REJECTION OF THE TERMS
AND CONDITIONS OF THIS AGREEMENT SET FORTH ABOVE BY CLICKING THE APPROPRIATE
BOX SET