PrescriberPoint Terms and Conditions
Effective: Nov 4th, 2024
1. Scope
Thank you for visiting www.PrescriberPoint.com (the “Site”), owned and operated by PrescriberPoint Corp. (“PrescriberPoint,” “us,” “we,” “our”). These Terms of Service, together with the additional documents referred to herein (collectively, “Terms”) set forth legal terms and conditions pursuant to which our Site and service(s) offered therein (“Service”) are made available to you (“you,” “user,” “account holder,”) and also govern any communications or offline interactions you have with PrescriberPoint and our Service.
2. Intended Use of the Site and Service
THIS SITE AND SERVICE ARE ONLY INTENDED FOR USE BY US HEALTHCARE PROFESSIONALS.
NEITHER THE SITE NOR SERVICE ARE INTENDED FOR INDIVIDUALS UNDER THE AGE OF 18
NEITHER THE SITE NOR SERVICE PROVIDE MEDICAL ADVICE.
NEITHER THE CONTENT OF THIS SITE NOR THE SERVICE ARE INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.
THE INFORMATION MADE AVAILABLE ON OR THROUGH THE SITE, CONTENT, DOCUMENTATION, OR MATERIALS SHOULD NOT BE RELIED UPON WHEN MAKING MEDICAL DECISIONS OR TO DIAGNOSE OR TREAT A MEDICAL CONDITION.
ALWAYS SEEK THE ADVICE OF A PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS REGARDING A MEDICAL CONDITION. RELIANCE ON ANY CONTENT OF THIS SITE OR SERVICE IS SOLELY AT YOUR OWN RISK.
3. Agreement to Terms
Your use of our Site or Service is conditioned on your acceptance of these Terms.
BY CLICKING "I AGREE" DISPLAYED AS PART OF THE ACCOUNT CREATION PROCESS, CREATING AN ACCOUNT, YOUR USE OF THE SERVICE, OR SIGNING AN APPLICABLE SEPARATE LEGAL AGREEMENT REFERENCING THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS, AND THOSE ADDITIONAL TERMS, TO THE EXTENT APPLICABLE, INCORPORATED BY REFERENCE IN THESE TERMS, INCLUDING, BUT NOT LIMITED TO:
PLEASE READ THESE TERMS FULLY AND CAREFULLY. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU ARE PROHIBITED FROM USING THE SERVICE.
BY AGREEING TO THESE TERMS, YOU EXPRESSLY AGREE TO THE ARBITRATION OF ALL DISPUTES AS FURTHER DESCRIBED IN SECTION 20, BELOW.
4. Changes to the Terms
We reserve the right, at our sole discretion, to amend these Terms at any time. The most recent version of the Terms will be reflected by the “Effective Date” noted at the top of the page. As applicable, we will notify you of material changes to these Terms when you next access the Site (we may also email you about any material changes to these Terms). Your continued use of the Service, after the Effective Date of any posted change constitutes your acceptance of the amended Terms as modified by the posted changes. For this reason, we encourage you to review these Terms frequently. To the extent permitted under applicable law, we reserve the right at any time and from time-to-time to modify or discontinue, temporarily or permanently, the Site or Service (or any part of them) with or without notice.
5. Warranty Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL CONDITIONS, WARRANTIES, REPRESENTATIONS AND OTHER TERMS, WHICH MAY APPLY TO THE SITE AND SITE DATA, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES WITH RESPECT TO THE SITE AND ALL INFORMATION, AND CONTENT.
NO INFORMATION OR ADVICE OBTAINED THROUGH THE SITE, OR AFFIRMATION BY US, BY WORDS OR ACTIONS, SHALL CONSTITUTE A WARRANTY. WE ALSO MAKE NO PROMISES OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, THAT THE CONTENT INCLUDED ON THE SITE IS ACCURATE, COMPLETE, UP-TO-DATE, OR RELIABLE, AND IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU FOR LOSSES ARISING OUT OF YOUR RELIANCE ON THE SITE (INCLUDING ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, PERSONAL INJURY/WRONGFUL DEATH, OR LOSS OF BUSINESS OPPORTUNITY).
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
6. Privacy Statement & Personal Information
6.1 Privacy Statement
PrescriberPoint’s Privacy Statement may be viewed at www.prescriberpoint.com\privacystatement.
Your personal information and any personal information you submit to PrescriberPoint, our Site or Service will be used and disclosed (processed) in accordance with our Privacy Statement, and to the extent applicable, our Consumer Health Data Privacy Statement Supplement, which contains additional information about our processing of Consumer Health Data as defined under U.S. state laws, such as: Washington’s My Health My Data Act (MHMDA), Nevada’s Consumer Health Data Privacy Law (NV CHDP) and Connecticut’s Data Privacy Act (CTDPA – SB 3). We reserve the right to modify our Privacy Statement and any Statement Supplement(s) as necessary and in our reasonable discretion from time to time.
6.2 Protected Health Information
To the extent your use of the Site and Service includes the provision of Protected Health Information (“PHI”), as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) by you to PrescriberPoint in your capacity as a Covered Entity as defined by HIPAA, the terms of PrescriberPoint’s Business Associate Agreement (“BA Agreement”) shall apply and are, to the extent applicable, incorporated into these Terms of Service by reference.
6.3 Disclosure of Personal Information, PHI, and CHD
You represent and warrant that you have obtained or will obtain prior to the provision of any personal information, including PHI and CHD to PrescriberPoint, any and all legally required consents, authorization, or other permissions necessary to permit the lawful disclosure of such personal information, including PHI and CHD to PrescriberPoint, the Site or Service for those purposes as set forth in these Terms of Service.
7. Children & Our Services
Neither the Site nor our Service is intended for users under the age of 18. We do not knowingly or intentionally gather personal information about visitors who are under the age of 16. If you are under 18, you are not permitted to use our Service, and you should not access the Site or provide any information about yourself including, without limitation, your name, address, email address or any screen name or username you may use, unless you possess legal parental or guardian consent.
8. Account Creation and Management
The Site and Service offers specific functionality that may be subject to regulation under applicable laws, ordinances, rules or regulations (“Applicable Laws”). Before you create an Account, you should ensure your use of the Service complies with Applicable Laws.
You represent and warrant that: (a) you will be the only person accessing the Service through the Account you create, (b) you will keep your Account credentials, including your password, secure, and (c) you will notify PrescriberPoint of any suspected breach of security or unauthorized use of your Account. You are responsible for all actions that are performed with, by or under your Account credentials whether done by you or by others. PrescriberPoint is not liable for any damages that result from unauthorized Account access or use.
You expressly acknowledge and agree that PrescriberPoint is not liable for access to your Account that results from theft or misappropriation of your username and password including any activities that occur using your Account after any improper access event, theft or misappropriation.
Your Account is for your individual use only. You may not authorize others to use your Account, and you may not assign or otherwise transfer your Account to any other individual.
Your Account is not transferable or sublicensable to third parties. You obtain no ownership rights in the Service, nor any content contained therein by creating an Account. Instead, you are given a license to use our Service in accordance with Terms. The license to the Service, and any information regarding your use of the Service, will be valid so long as you remain in compliance with these Terms. However, we may retain and use the information about your use of the Service as set forth in our Privacy and Cookie Statements.
9. Site Access
9.1 Internet Access
When visiting the Site on your mobile, laptop, desktop or other device (your “Device”), you acknowledge and agree that you are responsible for: (a) maintaining Internet access for your Device through a Wi-Fi or LTE data communication network, and (b) any Internet connection and telecommunications fees and charges that you incur.
9.2 Your Device
PrescriberPoint is not responsible for the operation of your Device. You are responsible for ensuring the system functions of your Device are in working order when accessing the Site and using the Service, including, but not limited to screen display operation features of your Device.
9.3 No Guarantee
Your access to the Site and Service may be suspended temporarily and without notice: (a) in the event of system failure, (b) for maintenance or repair, (c) where we reasonably suspect there has been a breach of these Terms, (d) for reasons reasonably beyond our control, or (e) as otherwise explained in these Terms.
PrescriberPoint makes no representation or warranty that the quality of any Services, information or other materials purchased or obtained through the Site or Service will meet your expectations, or that any password protection or other security measures that you may use will prevent unauthorized access to your Account, or that any such Account will not be accessed or misused by any other party.
You understand that information and communications, including e-mail and other electronic communications, may be accessed by unauthorized third parties when communicated over the Internet. You understand and agree that it is your sole responsibility, and not PrescriberPoint’s to obtain and implement appropriate security controls, including for example, third-party software products that support encryption and other security controls (if any) that are compatible with security measures that may be used by us from time to time in connection with the Site and Service.
PrescriberPoint and its suppliers and vendors will attempt to keep the information, Service and resources accessible through the Service timely and accurate, but make no guarantees, and disclaim any implied warranty or representation about the Service's accuracy, relevance, timeliness, completeness, reliability, security or appropriateness for a particular purpose.
PrescriberPoint’s Services may be subject to limitations, delays, and other interruptions or impediments inherent in the use or reliance on the Internet and digital services and communications. PrescriberPoint is not responsible for any delays, delivery or connection failures or other damages or losses resulting from such issues.
Your access and use of the Site and Service including any resources contained on, or otherwise made available by, them, is solely at your own risk.
PRESCRIBERPOINT, ITS SUPPLIERS AND VENDORS DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE INFORMATION, CONTENT, SERVICES, MATERIALS, FUNCTIONALITY, AND ANY OTHER RESOURCES AVAILABLE ON OR ACCESSIBLE THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ALL SUCH INFORMATION, CONTENT, SERVICES, MATERIALS, FUNCTIONALITY AND OTHER RESOURCES ARE MADE AVAILABLE "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND.
YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THESE TERMS AND THE SITE AND SERVICE WOULD NOT BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS.
10. Permitted Use and Restrictions of Site or Service
10.1 License Grant
Subject to the terms and conditions of these Terms of Service, PrescriberPoint hereby grants you a limited, non-exclusive, non-transferrable, non-sublicensable, non-assignable license to access and use the Site and Service (including updates and upgrades that replace or supplement them in any respect and which are not distributed with a separate license, and any documentation) solely for your individual use on a Device that you own or control or, in the event you are a health care practitioner or authorized by a health care practitioner to access and use the Site and Service, for your internal business purpose on a Device that such health care practitioner owns or controls.
Information provided by you will be stored using a third-party web hosting service and this license is subject to agreements PrescriberPoint has with such third-party web hosting service.
We reserve all other rights that are not expressly granted in these Terms.
10.2 License Use Restrictions
You may not access or use the Site or Service in any way that is not expressly permitted by these Terms of Service. You may not: (a) cause, permit or authorize the modification, copy, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site or Service; (b) sell, assign, rent, lease, or grant rights in the Site or Service, including, without limitation, through sublicense, to any other person or entity; (c) use the Site or Service for any unlawful, prohibited, abnormal or unusual activity as determined by PrescriberPoint in its sole discretion; or (d) use the Site or Service in any way not intended by PrescriberPoint.
10.3 Your Use of the Site or Service
In the event you use the Site or Service to access other third-party application, websites or services, you remain subject to the terms of such application, website or service. As PrescriberPoint does not control the content, privacy policies, or practices of any third-party applications, services or websites, we encourage you to read (and you must comply with) such application, service or website’s terms and policies. PrescriberPoint is not responsible for your use or misuse of any third-party applications, services or websites. PrescriberPoint is not responsible for the content of linked third-party sites, sites framed within the PrescriberPoint Site, third-party sites provided as search results, or third-party advertisements. PrescriberPoint does not make any representations and expressly disclaims any warranty regarding their content or accuracy.
10.4 Investigations
You are solely responsible for the use of your Account, how you use the Site and Service and your interactions with third parties through your use of the Site. We may, but are not obligated to, monitor or review our Site and Service at any time. If we become aware of any possible violations by you of these Terms or Applicable Law, we reserve the right to investigate such violations, and we may, at our sole discretion, immediately terminate your license to use the Site or Service pursuant to Section 18. You understand and agree that PrescriberPoint may, but is not obligated to, review and delete (without notice) any information that PrescriberPoint in its sole discretion determines violates these Terms, violates the rights of another person or entity, or which might be offensive, illegal or threaten the safety of others.
10.5 Use Restrictions
You must not use (or permit a third party to use) the Site or Service:
- In any unlawful manner, for any unlawful purpose, or to act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses or harmful data into the Site or any operating system used by the Site or Service
- In a way that could damage, disable, overburden, impair or compromise our systems or security, or interfere with other Site or Service users;
- To collect or harvest any information or data from the Site, Service or our systems or attempt to decipher any transmissions to or from the servers running the Site or Service;
- Via use of a robot, spider, or other automated device to monitor or copy the Site or Service, any portion thereof, or any information provided by the Site or Service
- To send, knowingly receive, upload, download, use or re-use any material which does not comply with these Terms;
- To transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam); or
- For any other purpose that is to PrescriberPoint’s or its customers’ or partners’ detriment or commercial disadvantage.
You acknowledge and agree that you are solely responsible for, and PrescriberPoint has no responsibility or liability to you or any other person or entity for any breach by you of these Terms or for the consequences of any such breach. You agree to promptly report to PrescriberPoint any known violation of these Terms by others.
10.6 Information You Provide
You agree not to provide inaccurate, misleading, or false information, including personal information, to PrescriberPoint or to any other user. If information, including personal information, provided by you to PrescriberPoint or another user subsequently becomes inaccurate, misleading, or false, you will promptly update the information. PrescriberPoint is not responsible nor is PrescriberPoint obligated to review any information, including any personal information, provided by you for its accuracy.
11. User Content and Submissions
You acknowledge and agree that any feedback, comments, or suggestions you provide to us regarding the Site or Service (“Submissions”):
- will be considered non-confidential and non-proprietary;
- PrescriberPoint has the right (subject to our Privacy Statement, without limit in time and without payment to you, to use, copy, distribute, adapt, and disclose Submissions via the Site, Service or otherwise to third-parties for any purpose, in any way, and in any media worldwide now known or later discovered, including, without limitation, the right to create derivative works, make improvements, perform (including through digital performance), and transmit (including through digital transmissions) such Submissions, and the right to transfer or sublicense such rights;
- we may have something similar to the Submissions already under consideration or in development; and
- you are not entitled to any compensation or reimbursement of any kind from us in connection with the Submissions under any circumstances.
12. Information Provided is Not Medical Advice
All data, information, text, graphics, links, and other material on this Site or provided by the Service, whether created by PrescriberPoint or obtained from PrescriberPoint's licensors, are provided as a convenience to our Site visitors and users of our Service. The information provided on this Site and through the Service is for general informational and educational purposes only and is not intended to serve as medical or other professional advice and is not to be used for diagnosis or treatment of any condition or symptom.
By accepting these Terms of Service, you acknowledge, understand and agree that:
- PrescriberPoint is not a medical provider and does not make clinical, medical, or other decisions related to healthcare. Any information provided on this Site or through the Service does not constitute the provision or practice of medical or professional health care advice or services.
- Any treatments, procedures, information, medications, medical device or other products or any other information referenced on the Site or provided through the Service, content, documentation, or materials were provided by third parties and were not vetted, verified for accuracy or completeness, or reviewed by qualified professionals, are for informational purposes only, and are not intended as a recommendation or endorsement of any course of treatment, procedure, information, medication, medical device, or product.
- Information provided on the Site DOES NOT create a doctor-patient relationship between you and any of the health professionals affiliated with the Site or Service (if any).
13. Intellectual Property
13.1 Trademarks
The “PrescriberPoint” name and logo are trademarks and service marks of PrescriberPoint. You do not have the right to use any of our trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
13.2 Ownership
You acknowledge that all intellectual property rights to PrescriberPoint, the Site, Service and PrescriberPoint’s trademarks and copyrights, whether registered or unregistered, including but not limited to rights in graphics, logos, “look and feel,” ownership of all intellectual property rights relating, the Site, Service trade dress, structure, organization, code, any Site-related software, data, text, images, graphics, proprietary algorithms, logos, user interface, and videos displayed through the Site and Service, and all content on the Site and provided by the Service and compilation thereof, anywhere in the world, belong to us or our licensors and are valuable trade secrets and confidential information of PrescriberPoint and/or our licensors, protected by intellectual property laws.
You acknowledge and agree that PrescriberPoint, or its licensors, owns all right, title and interest in and to the Site and Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Site are protected by U.S. and international copyright laws. Further, you acknowledge that the Site and Service may contain information that PrescriberPoint has designated as confidential, and you agree not to disclose such information without PrescriberPoint’s prior written consent.
Nothing posted on the Site grants a license to any PrescriberPoint or our licensor’s trademarks, copyrights, or other intellectual property rights, whether by implication, estoppel or otherwise. You should assume that everything you see or read on the Site or Service is proprietary information protected by copyright or trademark unless otherwise noted and may not be used except with the written permission of PrescriberPoint or where indicated, our licensors.
You are authorized to use PrescriberPoint content only as expressly authorized at the point of interacting with such materials. Nothing in these Terms transfers ownership of such rights. When accessing the Site or using the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Site and Service is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property.
14. Compliance with Laws
You may use the Site and Service only for lawful purposes. The Site and Service is subject to, and you agree that you will, at all times, comply with, all applicable local, state, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to the use of the Site and Service.
You hereby represent, warrant, and agree that:
- You are not listed by any federal or state agency as excluded, debarred, or otherwise ineligible for participation in any federal or state health care program, and
- that you will not employ or directly contract with any individual or entity whom you know or should have known after reasonable inquiry:
- has been convicted of a criminal offense related to health care, or
- is then currently excluded, debarred or otherwise ineligible for participation in any federal or state health care program (unless the individual has been reinstated to participation in Medicare and all other federal and state health care programs after being excluded because of conviction).
PrescriberPoint shall have the right to terminate your access to the Site, Service and/or your Account immediately and, notwithstanding anything contained in these Terms to the contrary, without penalty of any kind, upon becoming aware that you have been excluded or debarred, or at any time thereafter during which you continue to be excluded or disbarred, in our sole discretion.
You agree that you shall indemnify and hold harmless PrescriberPoint including its governing bodies and any enterprise operating committee members, individually and collectively, and its officers, employees and agents, individually and collectively, from all liabilities, damages, costs, fines and expenses, including reasonable attorneys’ fees, arising from a breach of this Section.
15. Third-Party Sites
The Site may contain links to third-party websites and materials made available by third parties, including our third-party licensors, (collectively, “Third-Party Site”). You acknowledge that PrescriberPoint has no control over, nor are we responsible for these Third-Party Sites or locations, and any Intellectual Property Rights therein, their contents, accuracy, validity, timeliness, completeness, reliability, integrity, legality, usefulness, safety, actions, and/or availability. Certain Third-Party Sites are intended for educational and scientific research purposes only and you expressly acknowledge and agree that use of such Third-Party Site is at your sole risk.
There is no warranty on the accuracy of the data provided by the Third-Party Site, and reliance on the data provided by the Third-Party Site shall be at your sole risk. Data provided on the Third-Party Site is not intended as a substitute for professional medical advice, diagnosis or treatment.
Certain Third-Party Sites may, among other things, be inaccurate, misleading or deceptive. We do not assume any liability for your use of any of the foregoing, which use you acknowledge and agree shall be at your own risk. Nothing in this Agreement will be deemed to be a representation or warranty by us with respect to any Third-Party Sites.
We have no obligation to monitor Third-Party Sites, and we may block or disable access to any Third-Party Sites (in whole or part) through the Site at any time. In addition, the availability of any Third-Party Sites through the Site does not imply our endorsement of, or our affiliation with, any provider of such Third-Party Sites, nor does such availability create any legal relationship between you and any such provider.
Your use of the Third-Party Site or locations will be governed by their terms and conditions and privacy policies (if any) (“Third-Party Terms”). It is your responsibility to read and comply with Third-Party Terms.
16. Indemnification
To the fullest extent permitted under applicable law, you agree to indemnify and hold us and our affiliates, and their respective business partners, licensees, licensors, officers, directors, employees and agents and their respective successors and assigns (the “Indemnified Parties”) harmless from and against any and all claims, demands, losses, causes of action, debt, judgments, awards, damages, liabilities, costs, fees, and expenses (including without limitation reasonable attorneys' fees and costs), to the extent that such action is based on, arises out of, or is in connection with:
(a) Your use of (or inability to use) the Site or Service, or activities in connection with the Site or Service (including all Submissions by you through the Site);
(b) Your breach or violation or alleged violation of any of these Terms; (c) your violation of the rights of any third-party; or
(c) any other activities of yours accomplished using the Site or Service
We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, which shall not excuse your indemnity obligations. In such event, you shall provide the Indemnified Parties with such cooperation as is reasonably requested by the Indemnified Parties.
17. Limitation of Liability
IN NO EVENT SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON UNDER ANY CIRCUMSTANCES FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, ANY BREACH OF SECURITY OR ANY DAMAGE TO YOUR DEVICE, LOST DATA, PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SITE, OR YOUR INABILITY TO ACCESS OR USE THE SITE) ARISING FROM, RELATING TO, OR IN ANY WAY CONNECTED WITH THE USE OR THE PERFORMANCE OF THE SITE, SERVICES, OR THESE TERMS, ARISING AND WHETHER FRAMED IN CONTRACT, TORT, OR STRICT LIABILITY, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF PRESCRIBERPOINT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Your sole remedy for dissatisfaction with the Site or Service including, without limitation, content on the Site, is to stop using the Site and Service. Such limitation shall also apply with respect to any information or advice received through or advertised in connection with the Site and Service or any links on the Site.
In the event the foregoing exclusion of liability is determined, in whole or in part, to be invalid or unenforceable, then the Indemnified Parties’ liability arising in connection with the Site or Service, or under these Terms whether in contract, tort (including without limitation negligence, strict liability and other actions in contract or tort) or otherwise, shall not exceed, under any circumstances, one hundred dollars ($100). These limitations of liability shall apply even if a limited remedy fails of its essential purpose. You agree that any claim or cause of action arising under these Terms, in relation to our Site, Service, or the performance or non-performance of the Site or Service must be brought within one year after such claim or cause of action arises or be forever barred. The limitation of liability herein applies to all liabilities in the aggregate, including, without limitation, those resulting from your use or your inability to use the Site or Service, or from any Third-Party Sites, including from any virus that may be transmitted in connection therewith, or any other matter arising from or relating to the Site or Service.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, PRESCRIBERPOINT’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON PRESCRIBERPOINT’S CHOICE OF LAW PROVISION SET FORTH BELOW.
18. Termination
We reserve the right to change, edit, suspend, delete and/or cancel any part of the Site or Service, or may terminate these Terms, and/or your permission to use the Site or Service immediately, without prior notice or liability, if (a) you commit any breach of these Terms; (b) we discontinue the Site or Service; (c) we are prevented from providing the Site or Service for any reason; (d) if required by law; or (e) due to an event beyond our control.
On termination of these Terms for any reason, (a) all rights granted to you under these Terms will cease immediately; (b) you must immediately cease all activities authorized by these Terms (including your use of the Site and Service); and (c) you acknowledge that we may restrict your access to the Site and Service.
Any provision of these Terms which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Terms, will survive the termination or expiration of these Terms and continue in full force and effect thereafter.
19. Communication with PrescriberPoint
If you wish to contact us in writing, or if any condition in these Terms require you to give us notice in writing, you can send this to us by email using the contact details at the bottom of these Terms. If we have to contact you or give you notice in writing, we may do so by email or using any other contact details you provide to us.
20. Dispute Resolution
BY AGREEING TO THESE TERMS, YOU EXPRESSLY AGREE TO THE ARBITRATION OF ALL DISPUTES (AS DEFINED BELOW) AS FURTHER DESCRIBED IN THIS PARAGRAPH.
20.1 Governing Law; Jurisdiction
These Terms are governed in all respects by the laws of Massachusetts, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
You and PrescriberPoint hereby submit and consent, except as otherwise provided below, to the exclusive jurisdiction of any state or federal court located within the Commonwealth of Massachusetts and irrevocably agree that all actions or proceedings between You and PrescriberPoint shall be brought, maintained and litigated exclusively in such courts, and each of You and PrescriberPoint waives any objection which it may have based on improper venue or forum non conveniens to the conduct of any such action or proceeding in such court. Notwithstanding the foregoing, PrescriberPoint shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
20.2 Binding Arbitration
Any controversy, allegation, or claim that arises out of or relates to the Site, these Terms, our Privacy Statement, or any additional terms, whether heretofore or hereafter arising (collectively, a “Dispute”), except for any controversy, allegation, or claim that arises out of or relates to our actual or alleged intellectual property rights (an “Excluded Dispute”), shall be finally resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and that these Terms do not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding.
20.3 Arbitration Procedures
You and PrescriberPoint agree that, except as provided in Section 20.6. below, all Disputes, (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 20 (Dispute Resolution) and the JAMS Rules, the terms in this Section will control and prevail. The arbitrator or arbitral panel may not consolidate more than one person’s Claims and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the foregoing arbitration provisions will remain in force.
Except as otherwise set forth in Section 20.6. below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and PrescriberPoint will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator.
Except as otherwise provided in these Terms (a) you and PrescriberPoint may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator, and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
20.4 Location
The arbitration will take place in the Commonwealth of Massachusetts unless the parties agree to video, phone or internet connection appearances.
20.5 Limitations
You and PrescriberPoint agree that any arbitration shall be limited to the Claim between PrescriberPoint and you, individually.
YOU AND PRESCRIBERPOINT AGREE THAT:
(A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES;
(B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND
(C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
20.6 Exceptions to Arbitration
You and PrescriberPoint agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Excluded Dispute, (b) any Claim related to, or arising from, allegations of theft, piracy, or unauthorized use, and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
20.7 Arbitration Fees
If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
20.8 Severability
You and PrescriberPoint agree that if any portion of this Section is found illegal or unenforceable (except any portion of Section 20.6.) that portion shall be severed, and the remainder of the Section shall be given full force and effect. If Section 20.6. is found to be illegal or unenforceable then neither you nor PrescriberPoint will elect to arbitrate any Claim falling within that portion of Section 20.6. found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the Commonwealth of Massachusetts, and you and PrescriberPoint agree to submit to the personal jurisdiction of that court.
21. Other Important Terms
21.1 Notice for California Residents Pursuant to CA Civil Code Section 1789.3
Under California Civil Code Section 1789.3, California users of an electronic commercial service receive the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at 916-445-1254 or 800-952-5210.
21.2 Assignment
The rights granted to you under these Terms may not be assigned without PrescriberPoint’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
21.3 Severability
If any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of these Terms shall be given full force and effect.
21.4 Attorneys’ Fees
The prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in any legal action relating to these Terms.
21.5 No Waiver
Our failure to enforce any provision of these Terms shall in no way be construed to be a waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by PrescriberPoint of any provision, condition or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
21.6 Equitable Remedies
You acknowledge and agree that PrescriberPoint would be irreparably damaged if the terms and conditions of these Terms were not specifically enforced, and therefore you agree that PrescriberPoint shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any breach of these Terms, in addition to such other remedies as PrescriberPoint may otherwise have available to us under applicable laws.
21.7 Entire Agreement
These Terms, including the documents and additional terms incorporated by referenced in these Terms, constitutes the entire agreement between you and PrescriberPoint with respect to the Site and Service and supersedes any and all prior agreements between you and PrescriberPoint relating to the Site or Service.
21.8 Transfer
PrescriberPoint may transfer our rights and obligations under these Terms to another organization, but this will not affect your rights or our obligations under these Terms.
21.9 Nature of Agreement
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship or other relationship between the parties or any of their affiliates is intended or created by these Terms. These Terms does not create any right that may be enforced by a third party and neither party shall have the right, power, or authority under these Terms to create any duty or obligation on behalf of the other party.
22. Contact Us
If you have questions or comments regarding these Terms, please contact us at support@prescriberpoint.com.
23. Business Associate Agreement
To the extent that you are a Covered Entity and in your use of the Site or Service you disclose Protected Health Information (“PHI”) to PrescriberPoint, (“Business Associate”), in connection with the Site or Service provided to you by PrescriberPoint, or as otherwise required by the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996, codified at 42 U.S.C. §1320d through d-9, as amended, ("HIPAA"), you and PrescriberPoint agree to the following additional terms and conditions:
23.1 Definitions
- "BA Agreement,” shall mean HIPAA Business Associate Agreement, specifically, those terms set forth below in this Section 23 of the Terms of Service.
- "Business Associate" shall generally have the same meaning as the term "business associate" at 45 C.F.R. §160.103, and in reference to the party to Terms, shall mean PrescriberPoint Corp.
- "Covered Entity" shall generally have the same meaning as the term "covered entity" at 45 C.F.R. §160.103, and in reference to the party to Terms of Service, shall mean you, user, account holder (together with your subsidiaries and affiliates).
- "HIPAA Rules" shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 C.F.R. Part 160 and Part 164.
- "Terms of Service” shall mean the Terms of Service into which these BA Agreement Terms are incorporated by reference, to the extent applicable, and to the extent to which Business Associate performs functions or activities on behalf of Covered Entity.
- Other definitions: The following terms used in this Section 23.1. shall have the same meaning as those in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required By Law, Secretary, Security Incident, Standard, Subcontractor, Transaction, Unsecured Protected Health Information, and Use. Other terms shall have the definitions set forth in this BA Agreement.
23.2 Obligations and Activities of Business Associate
To the extent applicable to the Site and Services provided, Business Associate agrees to:
- Not use or disclose PHI other than as permitted or required by this BA Agreement or as Required by Law;
- Use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information to prevent use or disclosure of PHI other than as provided for by this BA Agreement;
- Report to Covered Entity, any use or disclosure of PHI not provided for by this BA Agreement of which it becomes aware, including breaches of unsecured PHI as required by 45 C.F.R. §164.410, and any Security Incident of which it becomes aware;
- In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), to the extent applicable, Business Associate agrees to ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;
- To make available PHI in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity's obligations under 45 C.F.R. §164.524;
- To make any amendment(s) to PHI in a Designated Record Set as directed or agreed to by Covered Entity pursuant to 45 C.F.R. §164.526 or take other measures as necessary to satisfy Covered Entity's obligations under 45 C.F.R. §164.526;
- To maintain and make available the information required to provide an accounting of disclosures to the Covered Entity as necessary to satisfy Covered Entity's obligations under 45 C.F.R. §164.528;
- To the extent Business Associate is to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 C.F.R. Part 164 or other provisions of the HIPAA Rules, Business Associate agrees to comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation(s); and
- Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.
23.3 Permitted Uses and Disclosures of PHI by Business Associate
- Business Associate may only use or disclose PHI to perform functions, activities, or services for, or on behalf of, Covered Entity as specified in the Terms of Service and these BA Agreement Terms, provided that such use or disclosure complies with the HIPAA Rules.
- Covered Entity authorizes Business Associate to de-identify PHI and use or disclose such de-identified information, provided that de-identification, use, and disclosure complies with the HIPAA Rules.
- Business Associate may use or disclose Protected Health Information as permitted or Required By Law.
- Business Associate agrees to make uses and disclosures and requests for PHI consistent with Covered Entity’s Minimum Necessary policies and procedures.
- Business Associate may not use or disclose PHI in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity, except for the specific uses and disclosures set forth below.
- Business Associate may use PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate.
- Business Associate may disclose PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, provided the disclosures are Required By Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
- Business Associate may provide Data Aggregation services relating to the Health Care Operations of Covered Entity.
23.4 Obligations of Covered Entity
- Covered Entity shall notify Business Associate of any limitation(s) in the notice of privacy practices of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.
- Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an individual to use or disclose his or her PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.
- Covered entity shall notify Business Associate, in writing, of any restriction on the use or disclosure of PHI that Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect Business Associate’s use or disclosure of protected health information.
23.5 Survival and Termination of BA Agreement
The terms of this BA Agreement shall be effective as of the Effective Date of these Terms of Service and shall terminate on upon the termination of these Terms of Service, in accordance with Section 18 (Termination) or on the date Covered Entity terminates for cause as authorized below in this BA Agreement, whichever is sooner.
23.6 Termination for Cause
Business Associate authorizes termination of this BA Agreement and the Terms of Service by Covered Entity, if Covered Entity determines Business Associate has violated a material term of this BA Agreement and Business Associate has not cured the breach or ended the violation within the reasonable time specified by the Covered Entity.
23.7 Obligations of Business Associate Upon Termination
Upon termination of this BA Agreement for any reason, Business Associate, with respect to PHI received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity shall:
- Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
- Securely destroy the remaining PHI that the Business Associate still maintains in any form;
- Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic PHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Business Associate retains the PHI;
- Not use or disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out in Section 23.3. which applied prior to termination; and
- Securely destroy the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.
23.8 Survival
Business Associate's obligations under this Section 23 shall survive the termination of the Terms of Service.
23.9 Interpretation and Amendment of this BA Agreement
Covered Entity and Business Associate agree to take such action as is necessary to amend the terms of this BA Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law. All such amendments shall be made in a writing signed by both parties.
23.10 Severability
Whenever possible, each provision of this BA Agreement shall be interpreted to permit compliance with the HIPAA Rules. If any provision of this BA Agreement should be prohibited or found invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the other of such provision or the remaining provisions of this BA Agreement; provided, however, that if any such invalid provision is material to an extent that a party would not have entered into the BA Agreement absent such provision, then that party may terminate the BA Agreement under the Terms of Service, as set forth in Section 18 (Termination), above.