1. HOUSE RX’s OBLIGATIONS.
1.1 House Rx Services. Subject to the ultimate supervision of Customer’s physician(s), House Rx will provide the Services described in Exhibit A to the House Rx Management Services Agreement Order Form (the “Agreement”). House Rx may subcontract certain Services to a third party. House Rx has the right and authority to hire, train, supervise and terminate its subcontractors.
1.2 Limitation on Marketing. House Rx shall not provide any marketing services for Customer, nor promote Customer’s practice, nor generate patients. House Rx shall not refer any patient to Customer for any medical services. Customer is under no obligation to write any prescription related to the Services.
2. CUSTOMER’S OBLIGATIONS.
2.1 Provision of Customer Personnel. Customer is responsible for all required personnel for the operation of the MID Location(s) other than those provided by House Rx.
2.2 EHR Access and Security. Customer will cooperate and use good faith efforts to ensure House Rx can meet its obligations and perform the Services under this Agreement, including providing access to the Customer’s EHR and secure (including remote) network access to the local network via House Rx systems. Customer will abide by the cooperation, technology requirement & security terms posted at www.houserx.com/customer-terms, as may be updated by House Rx from time to time.
2.3 COMPLIANCE WITH LAWS
1. Regulatory Compliance. Customer shall abide by and be solely responsible for its compliance with all applicable laws, rules, and regulations, its agreements with third-party payors and any obligations under this Agreement. House Rx is not a law firm and does not provide legal or regulatory advice with respect to such compliance obligations. Customer shall ensure that its physicians and other practitioners maintain any required licenses, permits, and/or registrations, including licenses to practice medicine. Customer shall only assign its personnel user profiles for activities that such personnel are legally authorized to perform. It is the intent of the Parties to comply with the Anti-Kickback Statute and implementing regulations. The Parties agree that the Program Fees do not reflect the volume or value of any other business generated by either Party.
2. Practice of Medicine. Customer acknowledges and understands that House Rx is not authorized to practice medicine and the Services provided by House Rx do not contain or reflect any medical advice, judgment or opinion about the treatment or diagnosis of any patient or the choice of medications prescribed or recommended by Customer. Customer is solely responsible for (i) the treatment and diagnosis of Customer’s patients, and Customer shall prescribe all medications to its patients as determined in Customer’s professional judgment without any limitation by House Rx and (ii) its relationships with its physicians or other health care professionals. Customer retains ultimate authority, control and direction over all the health care professional services rendered by physicians and other health care professionals engaged by it. House Rx shall neither have nor exercise any control over the manner or methods by which Customer shall provide or supervise patient care services.
3. COMPENSATION. Customer shall pay House Rx the Program Fees set forth in the Agreement (the “Program Fees”). As applicable, in that the Program Fees owed to House Rx are lower than $1,000 per month, House Rx shall charge Customer a minimum fee of $1,000 per month (the “Minimum Fee”) per MID Location, which shall be due and payable in accordance with the terms of this Agreement. House Rx shall issue an invoice on a monthly basis. Program Fees shall be payable within 30 days of receipt. Any balance unpaid after 60 days shall accrue interest at the lesser of 1.5% per month, or the maximum legal rate, until paid in full. If Customer fails to pay any undisputed Program Fees by the applicable due date, and Customer has not cured such failure within 30 days after receiving notice of such failure, House Rx may (i) suspend and/or terminate Customer’s access, in full or in part, to the Services and/or (ii) terminate this Agreement. Any such suspension or termination will not relieve Customer of its obligation to pay any outstanding Program Fees. All amounts payable under this Agreement shall be paid by Customer in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason. The total amount indicated on an invoice does not include applicable transaction taxes. Customer is responsible for any sales, use, excise, gross receipts, personal property, privilege, value added tax liabilities and any other duties or other transaction taxes or charges imposed by any governmental entity related to the MID Location(s) activities, excluding only taxes based solely on House Rx income. Notwithstanding the foregoing, in the event that Customer does not submit any prescription claims during the Term, then Customer shall not, either as an individual or in another business relationship, directly or indirectly, engage in any medically-integrated dispensing activities for the period of time that otherwise would remain in the Term.
4. LICENSE GRANT; OWNERSHIP. Use of House Rx Application(s), Data and Analytics. Customer agrees to the following terms and conditions regarding Customer’s use of House Rx Application, including, but not limited to, any third party terms.
1. A “House Rx Application” is defined as any software or analytics product, including associated interfaces and knowledge bases, provided or made available by House Rx to Customer under this Agreement. During the Term of this Agreement, House Rx grants to Customer a non-exclusive, non-transferable, limited license to access and use the House Rx Applications that may be made available to Customer from time to time for the purpose of medically-integrated dispensing workflow operations, patient engagement & management and related analytics. House Rx may at its sole discretion upgrade, modify or discontinue a House Rx Application at any time. Use of a House Rx Application will be subject to an Acceptable Use Policy to be made available to Customer, and which may be modified by House Rx at its sole discretion from time to time.
2. House Rx grants to Customer a perpetual, irrevocable, non-exclusive, sublicensable, transferable, royalty-free license to use the data and analytics provided by House Rx under this Agreement.
4.2 Ownership. House Rx will retain exclusive ownership and all intellectual property rights, title and interest in the House Rx Proprietary Materials. “House Rx Proprietary Materials” means (i) the House Rx Application(s), (ii) House Rx policies, procedures, clinical protocols, technical documentation, user guides, patient-facing materials or training materials, (iii) data and analytics created or developed by House Rx, (iv) any other code, documentation, technology, works, inventions, techniques and know-how relating to the Services (whether or not customized or otherwise developed in connection with this Agreement) and (v) any suggestions and feedback provided by or on behalf of Customer relating to any of the foregoing. To the extent that ownership of any intellectual property or other right, title or interest to the House Rx Proprietary Materials does not automatically vest in House Rx, Customer hereby irrevocably assigns (and shall cause its personnel and contractors to assign) to House Rx all right, title and interest with respect thereto, and agrees to execute (and shall cause its personnel and contractors to assign) such further assignments and other documents as House Rx may reasonably request in order to further evidence such assignment and/or to seek intellectual property protections. House Rx reserves all rights not expressly granted to Customer in this Agreement.
4.3 Restrictions on Use. Customer shall not use a House Rx Application for any purposes beyond the scope of the access granted in this Agreement. Customer will not, directly or indirectly: (i) provide, disclose, divulge or make available to or permit access to or use of any of the House Rx Proprietary Materials by any Third Party, (ii) copy or reproduce all or any part of the House Rx Proprietary Materials, (iii) interfere, or attempt to interfere, with the House Rx Proprietary Materials in any way, (iv) distribute, market, sell, lease, transfer, license or sublicense the House Rx Proprietary Materials, (v) make, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the House Rx Proprietary Materials, or discover or attempt to discover the source code of all or any portion of the House Rx Proprietary Materials in any way for any reason, (vi) engage in any fraudulent, illegal or unauthorized use of the House Rx Proprietary Materials, (vii) introduce into or transmit through a House Rx Application any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design, (viii) attempt to provide or create a link to the House Rx Proprietary Materials, except as authorized by House Rx, (ix) create any frames at any other web sites pertaining to or using any of the information provided by a House Rx Application, (x) bypass or breach any security protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own valid Login (xi) engage in or allow any action involving the House Rx Proprietary Materials that is inconsistent with the terms and conditions of this Agreement or (xii) install any software or third party tool on the infrastructure that House Rx provides without House Rx’s prior approval.
4.4 Third Party Terms. As applicable in connection with the Services, House Rx hereby grants to Customer and its Authorized Users a limited, non-exclusive, non-transferable, non-licensable right to access and use the Third Party Items through the House Rx Application during the term of this Agreement. House Rx may modify the Third Party Terms in the event House Rx adds or replaces Third Party Items or as required in connection with changes to the applicable third party agreements for the Third Party Items. House Rx agrees to use commercially reasonable efforts to post the current Third Party Terms. The Third Party Items will not be deemed part of House Rx Proprietary Materials. All rights granted in this Section are solely for Customer and its Authorized Users’ use in connection with the Services and will terminate on the earlier of expiration or termination of (i) this Agreement, or (ii) the applicable agreement between House Rx and the licensor of the Third Party Items. Third Party Terms are posted and attached hereto as Appendix A.
5. CONFIDENTIALITY. Each Party may have access to information, oral or written, relating to the other Party’s business and operations, including pricing and discount lists, policies, procedures and general know-how, contractual arrangements (including the terms of this Agreement), current and future products and services, proprietary technology or trade secrets (“Confidential Information”). The receiving Party (the “Recipient”) will not disclose such Confidential Information to any third party without the permission of the disclosing Party (“Discloser”). Information is not considered confidential if it: (i) is already known, without restriction; (ii) is or becomes publicly known through no wrongful act or inaction of Recipient; (iii) has been rightfully received by Recipient from a third party authorized to make such communication without restriction; (iv) has been independently developed by Recipient without use of the Confidential Information. If Recipient is required by law to disclose any Confidential Information of Discloser, it will, if legally permissible, provide prompt written notice to enable Discloser to seek a protective order and/or take other steps to protect the information.
6. EXCLUSIVITY. The Parties agree that, during the Term, House Rx shall be the exclusive provider of services that are substantially the same or similar to the Services provided under this Agreement to Customer. The Parties also agree that all reasonable efforts will be made by the Customer to send all scripts for medications that are on formulary to the dispensary or pharmacy operated by House Rx during the Term of this Agreement. Failure to do so, and/or a concerted effort to send scripts to a different pharmacy will be considered a material breach of this Agreement, and in addition to any equitable remedies, House Rx may terminate and/or renegotiate the terms of this Agreement.
7. TERMINATION
7.1 Termination for Breach. Upon written notice by the non-breaching party to the other Party, if the other Party is in any material respect in breach, default or violation of any provision of this Agreement (a “Default”), and the Default is capable of being cured within 30 days of receipt of such notice from the non-breaching party, the breaching party will be entitled to cure such Default within such 30 day period before the non-breaching party can terminate this Agreement. If the breaching party has been notified of a Default and the Default is not capable of being cured, the breaching party will not be entitled to any cure period and the non-breaching Party may immediately terminate this Agreement.
7.2 Termination for Insolvency or Change in Business. Either Party may terminate this Agreement upon the liquidation or dissolution of the other Party or if there is a filing by or against the other Party of any petition under any state or federal bankruptcy law (including a petition for reorganization, arrangement or extension of debts) or under any other similar laws providing for the relief of debtors, which petition is not set aside, stayed or terminated within 60 days after the filing thereof.
7.3 Effect of Termination. Upon the termination or expiration of the Agreement, (i) Customer’s applicable license to access and use the Services will terminate as of the termination or expiration effective date, (ii) except as provided under the license granted to Customer herein, Customer shall return or destroy the House Rx Proprietary Materials and any and all equipment, software, documentation or other deliverables under this Agreement, (iii) Customer shall pay all sums due and owing as of the effective date of expiration or termination, as well as any non-cancellable expenses that House Rx committed to incur in anticipation of performing the Services, and (iv) House Rx, at its sole expense, shall provide Customer a one-time data transfer of Customer data which is in the possession of House Rx as of the effective date of termination. With respect to Confidential Information, within ten (10) calendar days following termination of this Agreement for any reason, the Receiving Party shall deliver to the Disclosing Party all tangible materials containing Confidential Information, along with any copies and summaries. To the extent the information cannot be returned to the Disclosing Party, the Receiving Party must use reasonable efforts to destroy it. Confidential Information that has been incorporated into analyses or other documents prepared by the Receiving Party shall be held by the Receiving Party and kept confidential or destroyed as provided in this Section and shall not be used for any reason that would be a violation of this Agreement. Notwithstanding this Section any Confidential Information integrated into patient charts, billing systems, or other systems of a Party hereunder, and which can reasonably be kept confidential by such Party, shall not be subject to this Section. Notwithstanding the foregoing, House Rx may retain a copy of Customer’s Confidential Information for purposes of responding to Customer inquiries, audits, or other reviews of services as provided to Customer by House Rx, subject always to the confidentiality obligations under this Section.
7.4 Survival. The Parties’ obligations under this Agreement, which by their nature are intended to continue beyond the termination or expiration of this Agreement, will survive the termination or expiration of this Agreement, including Sections 4, 5, 6, 7, 8, 9, and 10. Customer shall continue to make payments to House Rx pursuant to Section 3 through the effective date of termination of this Agreement.
8. NOTICES. All notices, demands, requests and other communications or documents provided under this Agreement must be delivered by a method providing for proof of delivery and will be deemed to have been given on the date of delivery. Notices will be given to the applicable Party at its address set forth herein, with a copy to the notified Party’s legal department or such other address as a Party may later specify for that purpose.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
8.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation or organization; (b) the representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; (c) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms; (d) it has engaged counsel to review this Agreement and shall comply with, and be responsible for, all applicable laws, rules, and regulations related to this Agreement, including the Stark Law.
9.2 DISCLAIMER. HOUSE RX HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE SERVICES PROVIDED BY HOUSE RX HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY REPRESENTATIONS AND WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
10. INDEMNIFICATION.
10.1 Indemnification. Each Party will indemnify, defend and hold harmless the other and its and their officers, directors, employees, representatives and contractors (collectively, “Indemnitees”) from and against any claim, liability, damage, loss or expense (including reasonable attorney’s fees and expenses) (“Claim”) incurred by or imposed upon any of the Indemnitees to the extent arising from: (a) material breach of, or material inaccuracy in, any representation, warranty or covenant hereunder, (b) negligence or willful misconduct of a Party or any person acting at its direction or on its behalf, (c) deviation from any applicable legal requirement or, in the case of Customer, standard of care, or (d) any investigation or final adjudication by any governmental agency or licensing board involving a Party or its personnel or providers. Any Indemnitee seeking indemnification under this Section shall give notice promptly after learning of any Claim.
10.2 LIMITATION ON LIABILITY. IN NO EVENT SHALL HOUSE RX BE LIABLE TO CUSTOMER OR ANY OF CUSTOMER’S EMPLOYEES, CONTRACTORS, AGENTS OR REPRESENTATIVES FOR (i) LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF OR DAMAGE TO CUSTOMER INFORMATION, DATA, PHI OR TRANSMISSIONS, (ii) THE COST OF COVER, (iii) LOSS OF OR DAMAGE TO SOFTWARE OR HARDWARE, (iv) ACCESS DELAYS OR ACCESS INTERRUPTIONS, (v) COMPUTER VIRUSES, OR (vi) ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT SHALL HOUSE RX’S AGGREGATE LIABILITY EXCEED THE FEES PAID TO HOUSE RX HEREUNDER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE ACT OR OMISSION RESULTING IN LIABILITY, REGARDLESS OF THE FORM OF ACTION, OR $200,000, WHICHEVER IS GREATER; PROVIDED, HOWEVER, THAT HOUSE RX’S TOTAL, CUMULATIVE LIABILITY FOR DAMAGES ARISING FROM ITS BREACH OF THE BUSINESS ASSOCIATE AGREEMENT (“BAA”) SHALL NOT EXCEED $1,000,000.
10.3 Acknowledgement and Savings Clause. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS ON LIABILITY IN THIS SECTION 9 ARE REASONABLE, ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN HOUSE RX AND CUSTOMER AND THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. THE REMEDIES PROVIDED TO CUSTOMER IN THIS AGREEMENT ARE EXCLUSIVE. If any of the exclusions or limitations of liability set forth in herein are determined to be not enforceable, such exclusions and limitations of liability shall be enforced to the fullest extent permitted by law.
11. MISCELLANEOUS.
11.1 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, except that House Rx may assign this Agreement without consent to an affiliate or to a successor-in-interest in connection with the sale of all or substantially all of its assets.
11.2 Publicity. Customer grants House Rx the right to use Customer’s name, logo, trademarks and/or trade names in forums and materials indicating that it is a customer of House Rx.
11.3 Choice of Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to its choice of law provisions.
11.4 Dispute Resolution. In the event of any controversy, claim or dispute between the Parties related to this Agreement (each, a “Dispute”), the Parties must first attempt to resolve such Dispute by appointing and authorizing a senior executive to resolve the Dispute (“Senior Executives”). The Senior Executives will meet for negotiations within 15 days after receipt of written notice of the Dispute (the “Initial Negotiation Period”). If the Dispute has not been resolved within 15 days after the end of the Initial Negotiation Period, then the aggrieved Party may proceed to seek relief in court. Notwithstanding the foregoing, either Party may seek injunctive relief for Disputes regarding a breach of confidentiality or violation of intellectual property rights. No claim or other action under this Agreement may be brought more than one year after such claim or cause of action first arises.
11.5 Force Majeure. Either Party will be excused for failures and delays in performance of its respective obligations under this Agreement due to any cause beyond its control and without the fault, including without limitation, any act of God, war, terrorism, riot or insurrection, law or regulation, strike, flood, fire, explosion, pandemic, or inability due to any of the aforementioned causes to obtain necessary labor, materials or facilities, for so long as such event continues, and for a reasonable period of time thereafter. The Parties will nonetheless in good faith exercise all reasonable efforts to perform.
11.6 Miscellaneous. The Parties are independent contractors and neither Party has any right, power or authority to act or create any obligation on behalf of the other Party. This Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns, and no other person has any right, benefit, priority or interest under or because of the existence of this Agreement. This Agreement may be executed in counterparts (including .pdf copies), which will together constitute one agreement. Should any part of this Agreement be invalid or unenforceable, it will not affect the validity and enforceability of the remaining portions. A court of competent jurisdiction may modify such invalid or unenforceable provision. This Agreement may not be modified or amended except in writing executed by the Parties. This Agreement constitutes the entire agreement and supersedes all prior written or oral agreements and representations with respect to the subject matter hereof. A waiver by either Party of a breach or violation of any provision of this Agreement will only be valid if it is in writing and signed by the Party providing the waiver and will not operate or be construed to be a waiver of any subsequent breach thereof unless such waiver explicitly provides otherwise.
