DrFirst End User Agreement
1. Client is licensing the DrFirst applications specified in the Order (“DrFirst Applications”) for the fees specified herein. The provisions of this DrFirst End User Agreement shall apply to the license of the DrFirst Applications by Client. DrFirst shall be an intended third-party beneficiary of this Order and shall have a right to enforce this DrFirst End User Agreement and all of its terms. Terms not otherwise defined in this DrFirst End User Agreement shall have the meanings set forth in the MSA. In the event of any conflict between the provisions of the MSA and the provisions of this DrFirst End User Agreement, the provisions of this DrFirst End User Agreement shall control with respect to the DrFirst Applications.
2. Definitions. The following definitions will apply to this DrFirst End User Agreement:
2.1 “Authorized End User” shall mean any individual who has been registered with DrFirst, who has executed the applicable terms of use as specified in Section 9 below, and who is authorized by virtue of such individual’s relationship to, or permissions from, Client, to access the DrFirst Applications through the Licensed Software pursuant to Client’s rights under the MSA and limited to health care practitioners who are validly licensed to practice in accordance with the terms of their licensed and have been properly authenticated to PDMP as may be required by applicable law.
2.2 “PDMP” shall mean the prescription monitoring program(s) that collect prescription drug dispensing information from prescribers and/or dispensers in accordance with applicable state law.
3. Access License. Subject to the terms and conditions contained in this DrFirst End User Agreement, WellSky hereby grants to Client: (i) a limited non-exclusive, non-transferable, right to access the features and functions of the DrFirst Applications during the term of the MSA, solely through the Licensed Software and only within the United States of America and (ii) a non-exclusive, non-transferable and non-sublicensable license to make a reasonable number of copies of the DrFirst Application documentation (“Application Documentation”) provided by WellSky solely for Client’s internal use in connection with access and use of the DrFirst Applications.
4. Additional Restrictions. Client may not distribute, sublicense, or otherwise convey any rights in the DrFirst Applications and the DrFirst Applications may not be accessed from outside the United States. DrFirst or its third-party vendors may terminate or temporarily disable access for the Client in the event of any breach of this DrFirst End User Agreement by the Client. Client shall at all times be responsible for any acts or omissions of its Authorized End Users.
5. Retained Rights; Ownership. DrFirst hereby retains the right to use, and to grant third parties the right to use, the DrFirst Applications and the Application Documentation for any and all purposes whatsoever. As between DrFirst and Client, DrFirst retains all right, title and interest in the DrFirst Applications and the Application Documentation, including all copies thereof in any form or medium, whether now known or existing or hereafter developed, and further including all copyrights, patents, trade secrets, trademarks or trade names therein. Except to the extent granted herein, Client acquires no rights in any of the foregoing.
6. General Usage Restrictions. Client shall not use the DrFirst Applications for any purposes other than as part of the Licensed Software. Client will not: (i) copy or duplicate the DrFirst Applications (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the DrFirst Applications are compiled or interpreted, and Client acknowledges that nothing in this DrFirst End User Agreement will be construed to grant Client any right to obtain or use such source code; (iii) modify the DrFirst Applications, or the Application Documentation, or create any derivative product from any of the foregoing, except with the prior written consent of DrFirst; (iv) act as a service bureau of the DrFirst Applications or otherwise run the DrFirst Applications for any-third party; (v) use the DrFirst Applications for performing comparisons or other benchmarking activities, either alone or in connection with any other product or service; (vi) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Client’s rights under the licenses granted in this DrFirst End User Agreement. Client will not use the DrFirst Applications, and/or the Application Documentation except in compliance with DrFirst’s Application Documentation as may be provided by DrFirst or WellSky from time to time. Client acknowledges that this DrFirst End User Agreement grants certain rights to access the DrFirst Applications, as hosted by DrFirst, but nothing herein may be construed to require delivery of a copy of the DrFirst Application or to grant Client any right to obtain such a copy.
7. TREATMENT OF DATA AND CONFIDENTIAL INFORMATION.
7.1 Ownership of Confidential Information. The DrFirst Applications and the Application Documentation are the Confidential Information of DrFirst and the confidentiality provisions included in the MSA shall apply to the DrFirst Applications and the Application Documentation.
7.2 Data Handling. DrFirst may de-identify any and all protected health information and other data provided to it by Client. De-identified data may be used for any lawful purpose; provided, however, that the use does not identify Client or the Authorized End User, except for cases where an Authorized End User has selected a program which requires the ability to identify the Authorized End User, in which case such data shall be used solely as necessary for the operation of the program, providing reports to Client, and DrFirst internal reporting, and not for any other purpose.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Representations.
a. Client hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) that the execution and performance of this DrFirst End User Agreement will not conflict with or violate any provision of any law having applicability to Client; and (iii) that this DrFirst End User Agreement, when executed and delivered, will constitute a valid and binding obligation of Client and will be enforceable against Client in accordance with its terms.
b. Client further represents and warrants (i) that it has the right to disclose and provide to WellSky and DrFirst any data provided through use and access of the DrFirst Applications, subject to the use restrictions and other requirements set forth in this DrFirst End User Agreement and (ii) that Client’s use of the DrFirst Applications, will comply with applicable laws and regulations, including, without limitation, any applicable provisions of the Health Insurance Portability and Accountability Act of 1996 and the rules and regulations promulgated thereunder.
8.2 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WELLSKY AND DRFIRST DISCLAIM ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, TITLE AND/OR NON-INFRINGEMENT WITH RESPECT TO THE DRFIRST APPLICATIONS. WELLSKY AND DRFIRST DO NOT WARRANT THAT THE DRFIRST APPLICATIONS WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE DRFIRST APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
8.3 Limitations and Exclusions of Liability. EXCEPT WITH RESPECT TO ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL DRFIRST OR WELLSKY BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE EVEN IF WELLSKY OR DRFIRST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS DRFIRST END USER AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCEPT WITH RESPECT TO ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE CUMULATIVE LIABILITY OF DRFIRST AND WELLSKY TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS DRFIRST END USER AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO DRFIRST BY WELLSKY UNDER THIS DRFIRST END USER AGREEMENT FOR CLIENT’S ACCESS DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS DRFIRST END USER AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.4 Essential Basis of the Agreement. Client acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section form an essential basis of the agreement between the Parties, and DrFirst’s agreement to provide access to the DrFirst Applications to Client, that the Parties and DrFirst have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this DrFirst End User Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this DrFirst End User Agreement would be substantially different.
9. Additional Terms. Authorized End Users shall be required to agree to additional terms upon log in to the DrFirst Applications. In addition, the terms set forth in Exhibit 2 shall also apply to the use of the Electronic Prescribing Services which are part of the DrFirst Applications.
AUTHORIZED USER GUIDELINES
Client will, and will require its Authorized End Users to, indemnify, hold harmless, and defend DrFirst, the National Association of Boards of Pharmacy, APPRISS and each of their respective officers, directors, employees, members, contractor’s and affiliates from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any third party claim in which any above-named party is named as a result of any access or use of the Application by Client or its Authorized End Users or Administrators.
Client represents and warrants that all information provided to DrFirst shall be accurate and complete to the best of its knowledge.
User Identification. Client ensures all messages transmitted to DrFirst originate from Authorized End Users who are employed by, subject to the direction and control of, or otherwise are licensed, registered, and authorized healthcare providers registered with Client. Client shall further conduct identity proofing and authentication in accordance with all industry standards and regulatory requirements.
Patient Consents. Client shall comply with all applicable law, including obtaining necessary patient consents and authorizations to provide the services. Client shall secure the right to use the data in any manner, so long as it is in compliance with all applicable state and federal laws and regulations, including but not limited to the ability to de-identify and aggregate the data.
Influencing of Providers. Client shall ensure that Authorized End Users do not, use any means, program, or device to influence or attempt to influence the decision of an Authorized End User to write a prescription for a certain medication or to send the prescription to a certain pharmacy; provided, however, that information related to formulary and benefit plan design and information from payers or other reputable sources providing clinical information shall be exempt from this prohibition, so long as the provider can still access all pharmaceuticals and the provider or patient is not prohibited from selecting a pharmacy.
Availability of Data Sources. Client acknowledges and agrees that any pharmacy, pharmacy benefit manager, payor or plan may elect not to receive prior authorizations from Client or Client’s Authorized End Users. Client acknowledges and agrees that any pharmacy benefit manager, pharmacy, payor, or other source of data may be added or deleted at any time without prior notice to Client.
Audit Rights. Client shall allow DrFirst and Surescripts, without notice, the ability to access, inspect, and review all records related to information and data provided by or through the Surescripts network through the DrFirst Application.
Medication History. Client acknowledges and agrees, and shall cause each Authorized End User, to acknowledge and agree that the prescription benefit information provided is not accurate or complete, and that DrFirst, Surescripts, the pharmacy, pharmacy benefit manager, payor, or other data source provides no representations or warranties with respect to the accuracy or completeness of the prescription benefit or medication history information. Furthermore, Client releases and holds harmless, and shall by contract cause its Authorized End Users to release and hold harmless, DrFirst, Surescripts, and any other person or entity providing prescription benefit or medication history information from any liability, cause of action, or claim related to the completeness or lack thereof of the information. Client shall by contract require its Authorized End Users to confirm this information with the patient before providing medical services and use his/her professional judgment in the provision of care.
Parties shall at all times comply with the provisions of their applicable Business Associate Agreement and with all applicable law. Client shall reasonably safeguard protected health information from intentional or unintentional disclosure in violation of the Privacy Rules.
