This Subscription Agreement is entered into by and between CreoRx Solutions, Inc. (CreoRx Solutions) and the customer who signs up for CreoRx Solutions Services (Subscriber) (collectively the Parties) as set forth in this Agreement by reference.
If Subscriber is a natural person, Subscriber affirms that it is either more than 18 years of age or has reached the age of legal majority in Subscriber’s jurisdiction of residence, and if Subscriber is a legal entity, that the natural person entering into the Agreement possesses the requisite authority to enter into this Agreement on behalf of such legal entity. Subscriber further represents that it is not a competitor of CreoRx Solutions, nor does it represent, directly or indirectly, a competitor of CreoRx Solutions.
“Agreement” means this Subscription Agreement together with any and all Orders and other documents and agreements included or incorporated by reference therein via hyperlink or other reference.
“Authorized User” means an individual who is authorized by Subscriber and CreoRx Solutions to access the CreoRx Solutions Services and may include, for example, Subscriber’s employees, agents, and third parties with whom Subscriber transacts business.
“Confidential Information” means all information, whether oral or in written, electronic, or other form or media, that could reasonably be understood to be confidential given the nature of the information or circumstances surrounding the disclosure. Confidential Information includes but is not limited to information relating to a party’s software or hardware, computer programs, source code, API data files, documentation, specifications, databases, system design, and development methods, as well as information relating to the party’s past, present and future business, financial, commercial and marketing information and plans, trade secrets, intellectual property, ideas, inventions, discoveries, processes, know-how, financials and financial forecasts and projections, product plans, designs, technical data and information, formulae, analyses, products, equipment, product road maps, prototypes, samples, designs, data sheets, schematics, configurations, specifications, techniques, drawings, customer lists, business processes and any other data or information disclosed, whether orally, visually, or in writing.
“Data” means all of Subscriber’s and Subscriber’s Authorized User’s data and information, in any form or media, (i) submitted to CreoRx Solutions by Subscriber or Subscriber’s Authorized User or on Subscriber’s or Subscriber’s Authorized Users’ behalf (including within the Uploaded Data Files), (ii) generated by the CreoRx Solutions Services specifically in response to such data and information, or (iii) captured by the CreoRx Solutions Service regarding data or information supplied by Subscriber or Subscriber’s Authorized Users (including within the Uploaded Data Files).
“Documentation” means the installation guides, manuals, and other documentation made available to Subscriber by CreoRx Solutions, which are related to the CreoRx Solutions Service.
“CreoRx Solutions End User License Agreement” or “EULA” means the terms of service made available by CreoRx Solutions at www.creorx.com/terms-and-conditions/ that Authorized Users of the CreoRx Solutions Service must agree to as a condition of being granted access to the CreoRx Solutions Service, as updated from time to time.
“CreoRx Solutions Service(s)” means the online products and/or services that are ordered by Subscriber under Subscription Orders and made available to Subscriber by CreoRx Solutions on our portal service basis via www.creorx.com.
“Personal Data” means information relating to an identified or identifiable natural person.
“Sales Order” means the ordering documents for the Subscriber’s purchases of any subscription or Services from CreoRx Solutions, which may detail, among other things, the number of Authorized Users authorized to use a Service under Subscriber’s subscription.
“Term” means the applicable subscription term set forth in the Subscriber’s Sales Order.
“Uploaded Data Files” means any data files that have been uploaded into the CreoRx Solutions Service by a Subscriber or an Authorized User for processing.
2.1 Subscription Grant
Subject to the terms and conditions of this Agreement, CreoRx Solutions hereby grants to Subscriber a limited, non-exclusive, revocable, non-assignable, non-transferable, non-sublicensable right, during the Term, to permit Subscriber’s Authorized Users to (a) access and use the CreoRx Solutions Services; and (b) use the Documentation in support of such Authorized Users’ permitted use of the CreoRx Solutions Services, in each case, solely for the internal business use of Subscriber.
2.2 User Accounts and Account Sharing Prohibition
Subscriber acknowledges and agrees that the CreoRx Solutions Service is accessed via user accounts requiring username and password logon credentials. Each Authorized User must have their own individual account. Accounts may not be shared with, or used by, multiple Authorized Users. Subscriber shall not permit Authorized Users to share Logon Credentials at any time. Subscriber is solely responsible for any breaches of this Agreement by any person accessing the CreoRx Solutions Services using an Authorized User’s Logon Credentials.
Subscriber’s Account credentials are unique to Subscriber and/or the entity with which Subscriber is employed or associated. Subscriber must immediately notify CreoRx Solutions at info@creorx.com if credentials have been stolen, compromised, or if Subscriber is no longer legally entitled to access the Services. Subscriber is responsible for all activities that occur under Subscriber’s credentials until proper notification has been made.
2.3 Subscription Restrictions
Subscriber agrees that Subscriber’s right to use and access the CreoRx Solutions Services is subject to the following restrictions:
• Subscriber may not make any part of the CreoRx Solutions Services or Subscriber’s logon credentials accessible to anyone other than Authorized Users;
• Subscriber may not attempt to reverse engineer, decompile, disassemble, or extract any element of and/or otherwise discover any source code, algorithms, methods, or techniques embodied in the CreoRx Solutions Service, except to the extent expressly permitted by applicable law;
• Subscriber may not modify, adapt, transfer, translate, assign, pledge, rent, lease, loan, sell, resell, or create derivative works based on the CreoRx Solutions Service or any user interfaces related to the foregoing;
• Subscriber may not attempt to access, upload, distribute or make available for distribution any proprietary and/or confidential Uploaded Data Files, the CreoRx Solutions Services, or its related systems or networks, unless Subscriber has sufficient rights and proper authorization to do so;
• Subscriber may not engage in any OEM, SaaS, time-sharing, outsourcing, application service provider or reseller or other distribution arrangements in connection with the CreoRx Solutions Services;
• Subscriber may not imply that the CreoRx Solutions Service was developed, owned by, or proprietary to Subscriber or any other third party, including hiding, tampering, amending, removing or otherwise amending any CreoRx Solutions proprietary markings;
• Subscriber may not use the CreoRx Solutions Service, or introduce code or other items to the CreoRx Solutions Service, in a manner that adversely affects the operation of CreoRx Solutions’s servers or other systems;
• Subscriber may not use the CreoRx Solutions Service to upload, create, access, display, manipulate, store, or distribute any Data that misappropriates or infringes the intellectual property or privacy rights of any third party;
• Subscriber may not use or access the CreoRx Solutions Service in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the CreoRx Solutions Services;
• Subscriber may not use the CreoRx Solutions Services if it or any of its Authorized Users is directly or indirectly a competitor of CreoRx Solutions; and
• Subscriber may not otherwise use the CreoRx Solutions Service in violation of the Agreement, the Documentation, or applicable law.
2.4 Subscriber’s Obligations — Implementation & Third-Party Equipment
Subscriber shall provide a primary and secondary point of contact (the ‘CreoRx Solutions Administrator’) to coordinate communication and make decisions during the CreoRx Solutions Services implementation process. Subscriber understands that CreoRx Solutions’ completion of the implementation process is entirely dependent upon Subscriber’s timely and effective completion of responsibilities under the terms of this Agreement.
Subscriber acknowledges and agrees that to use the CreoRx Solutions Service, each Authorized User will need a personal computing device with Internet access. CreoRx Solutions recommends accessing its portal through the Google Chrome web browser and ensuring that all browser updates are installed. Subscriber shall ensure that any other browsers used support HTTP/2 and TLS 1.2 or 1.3. Subscriber assumes all risks for its Data and is solely responsible for protecting and backing up the same.
2.5 Account Deactivation for Departed Personnel
If Subscriber is a law firm, attorney, or other organization that has granted Account access to staff members (including case managers, paralegals, legal assistants, or other personnel), Subscriber is responsible for promptly deactivating or requesting the deactivation of any Authorized User’s Account when that individual is no longer employed by, affiliated with, or authorized to act on behalf of Subscriber’s organization. Subscriber shall notify CreoRx Solutions at info@creorx.com within five (5) business days of any such departure or change in authorization status. Subscriber acknowledges and agrees that it is fully liable for any actions taken through Accounts that it fails to deactivate in a timely manner, including but not limited to unauthorized client enrollments, lien acknowledgments, and access to confidential client data.
2.6 Electronic Signatures
Subscriber acknowledges and agrees that all actions performed through the CreoRx Solutions portal by Subscriber or its Authorized Users constitute legally binding electronic signatures under the Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq., the ‘E-SIGN Act’). This includes, but is not limited to, enrolling clients, approving lien agreements, acknowledging letters of protection (‘LOPs’), authorizing pharmacy benefit cards, and modifying client records. Each action performed while logged into an Authorized User’s Account shall be deemed signed electronically by the applicable Authorized User, and Subscriber agrees that such electronic signatures carry the same legal weight and enforceability as handwritten signatures.
If Subscriber is a law firm or attorney, Subscriber further acknowledges that when its staff members enroll clients in the CreoRx system, such staff members are acting as authorized agents of the Firm, and their electronic signatures serve as the Firm’s acknowledgment and acceptance of the associated lien agreement and/or LOP. The Firm accepts full responsibility for ensuring that its staff members are properly authorized to execute such electronic signatures and that all necessary client consents have been obtained prior to enrollment. The provisions of Section 8 of the EULA are hereby incorporated by reference into this Agreement.
2.7 HIPAA and Business Associate Obligations
Subscriber acknowledges that its use of the CreoRx Solutions Services may involve the creation, receipt, maintenance, or transmission of individually identifiable health information (‘PHI’) as defined under the Health Insurance Portability and Accountability Act of 1996 (‘HIPAA’) and the Health Information Technology for Economic and Clinical Health Act (‘HITECH’). To the extent that CreoRx Solutions receives, maintains, or transmits PHI on behalf of Subscriber in connection with the Services, and where CreoRx Solutions is acting as a Business Associate (as defined under HIPAA), the parties agree to execute a Business Associate Agreement (‘BAA’) prior to any such processing.
Subscriber represents and warrants that: (a) it has obtained all necessary HIPAA authorizations and patient consents required in connection with its use of the Services; (b) it has implemented appropriate administrative, physical, and technical safeguards to protect PHI as required by HIPAA; (c) it will promptly report to CreoRx Solutions any Security Incident (as defined under HIPAA) of which Subscriber becomes aware; and (d) its use of the Services will comply with all applicable requirements of HIPAA, HITECH, and applicable state medical privacy laws. Subscriber is solely responsible for determining the extent of its HIPAA obligations in connection with its use of the Services.
2.8 Right to Audit
Subscriber agrees to keep records sufficient to demonstrate Subscriber’s compliance with this Agreement, including the number of Authorized Users using the CreoRx Solutions Service. CreoRx Solutions may, upon reasonable advance written notice to Subscriber, audit Subscriber’s use of the CreoRx Solutions Service. If an audit reveals that Subscriber has used the CreoRx Solutions Service beyond the scope of this Agreement, then, in addition to any other remedies CreoRx Solutions may have, Subscriber shall cure such breach within thirty (30) days of written notice to CreoRx Solutions.
2.9 Privacy
Subscriber’s access to the CreoRx Solutions Service may require certain Personal Data to be provided. CreoRx Solutions will collect, use, and in certain limited circumstances disclose Subscriber’s Personal Data in accordance with its Privacy Policy, available at www.creorx.com/privacy-policy, which is incorporated herein by reference. Subscriber acknowledges and agrees that it has read and accepted the current Privacy Policy. Subscriber acknowledges that CreoRx Solutions processes such information in its capacity as data processor, and that Subscriber remains at all times the data controller of such processing. Subscriber is exclusively responsible for obtaining all necessary consents to such processing, conveying required information notices under applicable law, and complying with any data subject requests.
2.10 Protection of Subscriber’s Data
CreoRx Solutions will use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Subscriber’s Data. CreoRx Solutions will not (a) disclose Subscriber’s Data except in accordance with its Privacy Policy or as otherwise expressly permitted in writing by Subscriber, or (b) access Subscriber’s Data except to provide the CreoRx Solutions Service and prevent or address service or technical problems, or at Subscriber’s request in connection with customer support matters. Although CreoRx Solutions uses reasonable efforts to safeguard the security of such information, transmissions made on or through the Internet cannot be guaranteed to be secure.
3.1 Term and Auto-Renewal
This Agreement shall remain in effect for the Term specified in the applicable Sales Order unless terminated sooner in accordance with this Agreement. Unless otherwise stated in the applicable Sales Order, all subscriptions shall automatically renew for additional one (1) year renewal periods, unless either party provides thirty (30) days’ prior written notice to the other party of its intent not to renew prior to the end of the then-current Term. Failure by Subscriber to comply with any terms of this Agreement shall not delay or modify the Term or any of Subscriber’s payment obligations hereunder.
3.2 Termination
In the event CreoRx Solutions reasonably suspects that illegal activity is occurring, or reasonably believes that a material security risk has, or will, occur, CreoRx Solutions reserves the right, without any prior notice and without liability for any resulting consequential damages, in its sole and reasonable discretion, to terminate or suspend Subscriber’s access to the Services. Either party may terminate this Agreement immediately upon notice to the other party if the other party commits a non-remediable breach, or if the other party fails to cure a remediable breach within ninety (90) days after being notified in writing of such breach, except that non-payment of fees must be cured within ten (10) days after written notification.
3.3 Effects of Termination and Data Retention
Upon termination of this Agreement, all subscriptions granted to Subscriber hereunder shall terminate and Subscriber’s Authorized Users shall immediately cease all use of the CreoRx Solutions Service.
Upon termination, CreoRx Solutions shall not be obligated to store Uploaded Data Files (portal operational data) for more than thirty (30) days following the expiration or termination of this Agreement. Within twenty (20) days following the date of termination, Subscriber shall notify CreoRx Solutions, in writing, whether it would like the Uploaded Data Files: (i) destroyed; or (ii) returned to Subscriber in a mutually agreed-upon format. Subscriber shall be solely responsible for all costs associated with such return.
Notwithstanding the foregoing, the following categories of data are subject to extended retention periods and shall not be subject to the thirty (30) day deletion timeline above:
• Electronic signature records, lien agreements, and letters of protection will be retained for a minimum of seven (7) years following the last activity on the associated account or client record, consistent with the EULA and applicable lien enforcement rights;
• Client enrollment data, prescription histories, and custody records will be retained for a minimum of seven (7) years, or for such longer period as may be required by applicable law, regulatory requirements, or the Company’s lien enforcement rights;
• Prescription records and pharmacy transaction data will be retained for the period required by applicable state pharmacy board regulations and federal law;
• Individually identifiable health information will be retained as required by HIPAA and applicable state medical records retention laws;
• Billing, invoicing, and financial records will be retained for a minimum of seven (7) years or as required by applicable tax and accounting regulations.
During the applicable retention period, Subscriber may request an export of its data by contacting CreoRx Solutions at info@creorx.com, subject to any applicable fees and legal restrictions. CreoRx Solutions reserves the right to retain and use any data as reasonably necessary for lien enforcement, legal compliance, dispute resolution, and the exercise of its rights under this Agreement, the EULA, and any applicable lien agreements, even after termination of Subscriber’s Account.
3.4 Surviving Provisions
Sections 1, 4, 5, 6, 7, 8 and all payment obligations owed by Subscriber to CreoRx Solutions for Services received prior to the effective date of expiration or termination shall survive any termination or expiration of this Agreement.
During the term of this Agreement, neither party shall (i) disclose to any unaffiliated third party any Confidential Information; or (ii) use the Confidential Information for any purpose other than that indicated in this Agreement without the Disclosing Party’s prior written approval. The Receiving Party agrees to maintain the confidentiality of the Confidential Information disclosed by the Disclosing Party, using the same degree of care that it uses to protect its own confidential information (but in no event less than a reasonable degree of care). The Receiving Party agrees to notify the Disclosing Party promptly of any unauthorized disclosure of Confidential Information and to assist the Disclosing Party in remedying any such unauthorized disclosure.
Nothing in this Agreement shall be construed to restrict the parties from disclosing Confidential Information as required by law or court order or other governmental order or request, provided in each case the party requested to make such disclosure shall timely inform the other party and use all reasonable efforts to limit the disclosure and maintain the confidentiality of such Confidential Information to the extent possible.
All Confidential Information disclosed hereunder shall remain the sole property of the Disclosing Party and the Receiving Party shall have no interest in or rights with respect thereto except as expressly set forth in this Agreement.
CreoRx Solutions may contract with third parties or subcontractors to perform obligations and/or services under this Agreement, and shall have the right to disclose Subscriber’s Confidential Information to such third parties in connection with their performance of services on CreoRx Solutions’ behalf. Such third parties are not permitted to use Confidential Information for any purpose other than to provide services to CreoRx Solutions.
The parties agree that unauthorized use or disclosure of Confidential Information would be a material breach of this Agreement, may cause irreparable harm to the Disclosing Party, and that the Disclosing Party shall be entitled to seek injunctive or other equitable relief seeking to restrain such use or disclosure without the necessity of posting any bond.
The provisions on confidentiality shall survive for seven (7) years after termination of this Agreement, except that with respect to any Confidential Information that constitutes a trade secret as defined under applicable law, the receiving party will continue to be bound by its obligations under this Section for so long as such information continues to be eligible for trade secret protection under applicable law, but in no event for a period of less than the seven (7) year period specified above.
5.1 CreoRx Solutions Ownership
As between CreoRx Solutions and Subscriber, CreoRx Solutions retains all rights, title, and interest (including all Intellectual Property Rights and other rights) in and to the CreoRx Solutions Service and all equipment, infrastructure, websites, materials or deliverables provided to Subscriber by CreoRx Solutions, including any updates of any of the foregoing, any intangible ideas, residual knowledge, concepts, know-how and techniques related to or learned from its performance and provision of the CreoRx Solutions Services, and any feedback submitted by Subscriber, subject only to the limited rights expressly set forth in Section 2.1 of this Agreement.
5.2 Ownership of Subscriber’s Data
CreoRx Solutions does not claim any ownership rights to any Uploaded Data Files created by Authorized Users, which are and shall continue to be the sole and exclusive property of Subscriber or Authorized Users, as applicable. Notwithstanding anything in the Agreement to the contrary, CreoRx Solutions shall have the right to collect and analyze Subscriber’s Data and other content or information relating to the provision, use, and performance of various aspects of the CreoRx Solutions Service and related systems, technologies and offerings, and CreoRx Solutions will be free (during and after the term of the Agreement) to (i) use, access, store, copy, display and transmit such data, content and information to improve and enhance the CreoRx Solutions Service and for other development, diagnostic and corrective purposes, and (ii) use and share such data in aggregate or other de-identified form (‘Anonymized Data’) in connection with its business, including, without limitation, for artificial intelligence training purposes. Anonymized Data will not be considered Subscriber’s Confidential Information.
5.3 Feedback
If Subscriber elects to provide any feedback or comments to CreoRx Solutions related to the CreoRx Solutions Service (‘Feedback’), all of Subscriber’s Feedback shall be the sole and exclusive property of CreoRx Solutions, and CreoRx Solutions shall have the right to use and disclose such Feedback in any manner and for any purpose in CreoRx Solutions’ discretion without remuneration, compensation or attribution to Subscriber.
5.4 Customer Lists
Notwithstanding anything herein to the contrary, CreoRx Solutions may (i) during the Term, display Subscriber’s name and logo on its website and related marketing assets as a customer of the CreoRx Solutions Service, and (ii) use and publish Subscriber’s testimonials and Feedback regarding the CreoRx Solutions Service in publications, presentations, and marketing assets.
6.1 No Limited Warranty; Disclaimer
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SUBSCRIPTION AGREEMENT, THE CREORX SOLUTIONS SERVICE AND SERVICES PROVIDED HEREUNDER ARE PROVIDED ‘AS IS’, ‘AS-AVAILABLE’, WITH ALL FAULTS, AND CREORX SOLUTIONS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CREORX SOLUTIONS OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY.
6.2 No Medical or Legal Advice
THE CREORX SOLUTIONS SERVICES ARE DESIGNED SOLELY TO FACILITATE PHARMACY BENEFIT ACCESS AND LIEN ADMINISTRATION FOR PERSONAL INJURY CASES. CREORX SOLUTIONS DOES NOT PROVIDE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT RECOMMENDATIONS. USE OF THE SERVICES DOES NOT ESTABLISH A PHARMACIST-PATIENT, PROVIDER-PATIENT, OR ANY OTHER HEALTHCARE PROVIDER RELATIONSHIP BETWEEN CREORX SOLUTIONS AND ANY CLIENT, PATIENT, OR END USER.
CREORX SOLUTIONS IS NOT A LAW FIRM OR LEGAL SERVICES PROVIDER, AND DOES NOT AND CANNOT PROVIDE ANY LEGAL ADVICE, EXPLANATION, OPINION OR OTHER RECOMMENDATION. ATTORNEYS AND LAW FIRMS USING THE SERVICES ARE SOLELY RESPONSIBLE FOR ENSURING THAT THEIR USE COMPLIES WITH APPLICABLE STATE BAR RULES, PROFESSIONAL RESPONSIBILITY STANDARDS, AND ALL OTHER LEGAL AND ETHICAL OBLIGATIONS. ALL MEDICAL DECISIONS REMAIN SOLELY BETWEEN THE CLIENT AND THEIR TREATING HEALTHCARE PROVIDER(S).
6.3 Limitation of Liability
EXCEPT TO THE EXTENT THE FOLLOWING LIMITATION OF LIABILITY IS PROHIBITED BY LAW, CREORX SOLUTIONS’S, AND ITS EMPLOYEES’, OFFICERS’, DIRECTORS’, STOCKHOLDERS’, AGENTS’, SUCCESSORS’, ASSIGNS’, AFFILIATES’, CONSULTANTS’ AND SUPPLIERS’ (COLLECTIVELY, THE ‘CREORX SOLUTIONS ENTITIES’) TOTAL LIABILITY TO SUBSCRIBER SHALL BE LIMITED TO DIRECT DAMAGES SUSTAINED BY SUBSCRIBER UP TO A MAXIMUM AMOUNT OF $100.00 (ONE HUNDRED DOLLARS); PROVIDED THAT, REGARDLESS OF ANY STATUTE OR LAW, NO CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS SUBSCRIPTION AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED. NO CREORX SOLUTIONS ENTITY SHALL BE LIABLE FOR PERSONAL INJURY, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS), UNDER ANY THEORY OF LIABILITY, EVEN IF CREORX SOLUTIONS HAS BEEN ADVISED OF THE RISK OF SUCH DAMAGES.
6.4 Waiver of Unknown Claims
SUBSCRIBER ACKNOWLEDGES THAT SUBSCRIBER MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE UNKNOWN OR UNSUSPECTED. ACCORDINGLY, SUBSCRIBER AGREES TO WAIVE THE BENEFIT OF ANY LAW, INCLUDING, TO THE EXTENT APPLICABLE, CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY SIMILAR PROVISIONS OF THE LAWS OF OTHER STATES), WHICH STATES: ‘A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.’ THIS WAIVER APPLIES TO ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, OR SUBSCRIBER’S USE THEREOF, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, AT THE TIME SUBSCRIBER AGREES TO THIS AGREEMENT.
6.5 Third Party Services
As a part of the CreoRx Solutions Services, CreoRx Solutions may offer links to, or include within such CreoRx Solutions Services, certain software, services, or information by or from other third parties (‘Third-Party Services’). Such Third-Party Services are licensed to Subscriber, and Subscriber agrees that its use of such Third-Party Services is subject to and will comply with the license terms of such Third-Party Service and the terms of this Subscriber Agreement. CreoRx Solutions is not liable or responsible for any acts or omissions created or performed by these Third-Party Services. CREORX SOLUTIONS ASSUMES NO RESPONSIBILITY AND MAKES NO REPRESENTATIONS, WARRANTIES, RECOMMENDATIONS, ENDORSEMENTS OR APPROVALS WITH REGARD TO SUCH THIRD-PARTY INFORMATION.
7.1 Subscriber’s Indemnity Obligations
Subscriber agrees to indemnify, defend and hold harmless CreoRx Solutions and its officers, directors, employees, stockholders, agents, representatives, successors and assigns from and against any and all losses, claims, costs, demands, damages, deficiencies, actions, judgments, settlements, interest, awards, penalties, fines, liabilities or expenses of whatever kind, including, but not limited to, reasonable attorneys’ fees and costs (‘Losses’) arising from any third party suits, actions, claims, or proceedings (‘Claims’): (i) alleging that the content and/or Data (including Personal Data) infringes or misappropriates a third party’s intellectual property, privacy or other rights; (ii) resulting from Subscriber’s or Subscriber’s Authorized User’s use of the CreoRx Solutions Service; (iii) resulting from Subscriber’s or Subscriber’s Authorized Users’, employees’ or agents’ breach of or failure to comply with or fulfill any term, condition, representation, or covenant under this Agreement; or (iv) any failure by Subscriber or its employees, agents or Authorized Users to comply with any applicable federal, state or local laws, regulations or codes applicable to Subscriber’s obligations under this Agreement or use of the CreoRx Solutions Services.
7.2 CreoRx Solutions Indemnity Obligations
CreoRx Solutions agrees to indemnify and defend Subscriber from and against any Claim initiated by a third party alleging that Subscriber’s use of the CreoRx Solutions Service in accordance with the terms of this Agreement infringes any United States patents of which CreoRx Solutions is aware, any copyrights of any third party or trade secret rights, provided, however, that CreoRx Solutions shall not be obligated to indemnify and defend Subscriber from and against any Claim to the extent arising from (i) any matter for which Subscriber are obligated to indemnify CreoRx Solutions pursuant to Section 7.1 above; (ii) use of the CreoRx Solutions Service with any other software or service not provided by CreoRx Solutions, if, but for such combination, the use of the CreoRx Solutions Service would not have been infringing.
7.3 Exclusive Remedy
Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in Section 8.
8.1 Governing Law; Dispute Resolution; Agreement to Arbitrate
This Agreement and all matters arising out of or relating to this Agreement shall be governed by the internal laws of the State of Nevada without giving effect to any choice of law rule. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sales of Goods. Except as set forth in this Section 8.1, each party hereby irrevocably consents to the mandatory and exclusive personal jurisdiction and venue of the state and federal courts located in Clark County, Nevada.
Except for: (i) the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief; or (ii) the right of CreoRx Solutions to enforce its right to collect amounts due under this Agreement, any claim or controversy arising out of or relating in any way to this Agreement or to a breach of this Agreement shall be finally and exclusively settled by binding arbitration in Clark County, Nevada under the Commercial Arbitration Rules of the American Arbitration Association (‘AAA’). The arbitrator shall apply the substantive law of the State of Nevada, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. The prevailing party shall be entitled to receive from the other party all attorneys’ fees and costs incurred. The AAA Commercial Arbitration Rules can be found at www.adr.org/Rules.
8.1.1 Class Action and Jury Trial Waiver
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBSCRIBER AND CREORX SOLUTIONS EACH WAIVE THE RIGHT TO A JURY TRIAL FOR ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES. SUBSCRIBER AND CREORX SOLUTIONS EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, BOTH PARTIES WAIVE ANY RIGHT TO A JURY TRIAL. SUBSCRIBER ACKNOWLEDGES THAT IT IS WAIVING THESE RIGHTS VOLUNTARILY AND KNOWINGLY.
8.1.2 Pre-Arbitration Dispute Notice Requirement
For all disputes or claims Subscriber may have, Subscriber must first give CreoRx Solutions an opportunity to resolve the claim by sending a written description of the claim (‘Notice of Dispute’) to info@creorx.com. The Notice of Dispute must include: (a) Subscriber’s name and contact information; (b) account identifier; (c) a written description of the problem, relevant documents and supporting information; and (d) a statement of the specific relief Subscriber is seeking. The parties agree to negotiate any claim(s) between them in good faith. Neither party may commence arbitration or court proceedings (except as allowed by Section 8.1 for equitable relief or collection) unless the parties are unable to resolve the claim(s) within thirty (30) days after receipt of the Notice of Dispute and have made a good faith effort to resolve the claim during that time.
8.2 Severability and Waiver
If any provision of this Agreement is held to be illegal, invalid, or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
8.3 Assignment
Subscriber may not assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of CreoRx Solutions. Any purported assignment, transfer or delegation by Subscriber shall be null and void. CreoRx Solutions shall have the right to assign this Agreement without Subscriber’s consent and without prior notice to Subscriber. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.
8.4 Notice
Any notice in connection with this Agreement shall be given in writing and must be sent via: (i) hand delivery (effective upon delivery); (ii) recognized overnight courier with tracking confirmation (effective one business day after deposit); (iii) certified or registered mail, return receipt requested, postage prepaid (effective three business days after mailing); or (iv) electronic mail (effective upon confirmed receipt). Notices to CreoRx Solutions shall be sent to: CreoRx Solutions, Inc., 871 Coronado Center Dr., Ste. 200, Henderson, NV 89052, Attn: Legal Department, or by email to info@creorx.com. Notices to Subscriber shall be sent to the address or email address provided by Subscriber.
8.5 Injunctive Relief
Subscriber acknowledges and agrees that a breach or threatened breach of any covenant contained in this Agreement would cause irreparable injury, that money damages would be an inadequate remedy, and that CreoRx Solutions shall be entitled to temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain Subscriber from such breach or threatened breach. Nothing in this Section 8.5 shall be construed as preventing CreoRx Solutions from pursuing any and all remedies available to it, including the recovery of money damages from Subscriber.
8.6 Legal Compliance and Export Administration
By accepting this Agreement, Subscriber represents and warrants that Subscriber and Subscriber’s Authorized Users: (i) are not located in a jurisdiction that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a ‘terrorist supporting’ country, and will not use the CreoRx Solutions Service in such jurisdictions; (ii) are not listed on any U.S. government list of prohibited or restricted parties; and (iii) will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations. Subscriber further represents, warrants, and agrees that its use of the Services will comply with all applicable federal, state, and local laws, rules, and regulations, including but not limited to HIPAA, HITECH, applicable state lien statutes, state bar ethics rules and professional responsibility standards, and any other laws or regulations governing the handling of protected health information and client data.
8.7 Independent Contractor
CreoRx Solutions’ relationship with Subscriber will be that of an independent contractor. Neither party is the agent, representative, nor partner of the other and neither party has any authority or power to bind or contract in the name of or to create any liability against the other in any way or for any purpose pursuant to this Agreement.
8.8 Statute of Limitations
Subscriber agrees that any claim or cause of action arising out of or relating to this Agreement or the Services must be commenced within one (1) year after the cause of action accrues. Any claim or cause of action not filed within this one-year period shall be permanently barred. This limitation applies regardless of whether the claim or cause of action arises under contract, tort, statute, or any other legal theory. This provision does not apply to CreoRx Solutions’ right to enforce its lien rights or to collect amounts due under this Agreement, which shall be subject to the applicable statute of limitations under Nevada law.
8.9 Force Majeure
Neither party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay results from causes beyond the party’s reasonable control, including but not limited to: acts of God, natural disasters, fire, flood, earthquake, epidemic, or pandemic; war, terrorism, civil unrest, or government action; internet or telecommunications failures, power outages, or system malfunctions; pharmacy network disruptions, formulary changes, or third-party service provider failures; cyberattacks, data breaches, or security incidents affecting third-party systems; or changes in applicable laws, regulations, or regulatory guidance. In the event of a force majeure event, the affected party’s obligations under this Agreement shall be suspended for the duration of the event, and that party shall use commercially reasonable efforts to resume performance as promptly as practicable.
8.10 No Third-Party Beneficiaries
This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement, except as expressly provided herein.
8.11 Language
English is the language of this Agreement, and all communications and proceedings must be conducted in English. If this Agreement is translated, then the English language version will control.
8.12 Modifications
CreoRx Solutions may modify this Agreement from time to time in which case CreoRx Solutions will update the ‘Last updated’ date at the bottom of this Agreement. If material changes are made, CreoRx Solutions will use reasonable efforts to attempt to notify Subscriber, such as by e-mail and/or by placing a prominent notice on the first page of this Agreement. However, it is solely the Subscriber’s responsibility to review this Agreement from time to time to view any such changes. Subscriber’s continued access or use of the CreoRx Solutions Services after the modifications have become effective will be deemed Subscriber’s acceptance of the modified Agreement.
8.13 Entire Agreement
The Agreement, together with the EULA, the Privacy Policy, and Terms and Conditions, constitutes the final, complete, and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and understandings between the Parties. In the event of a conflict between the terms of this Agreement and the EULA, the EULA shall control with respect to lien-related obligations, payment terms, arbitration of lien disputes, and the attorney guarantee; this Agreement shall control with respect to subscription access, pricing, data retention, and all other matters addressed herein.
9.1 Technical Support
CreoRx Solutions shall provide Subscriber with unlimited access to the CreoRx Solutions Help Center. Subscriber will also have access to email-based support during CreoRx Solutions’ regular business hours, 9:00 a.m.–5:00 p.m. Monday to Friday U.S. Pacific Time, excluding U.S. holidays.
9.2 Availability
CreoRx Solutions will use commercially reasonable efforts consistent with prevailing industry standards to make the CreoRx Solutions Service available at least ninety-nine percent (99.0%) of the time as measured over the course of each calendar month during the Term, except for: (a) scheduled maintenance; (b) unplanned downtime; or (c) any unavailability caused by circumstances beyond CreoRx Solutions’ reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, pandemics, civil unrest, acts of terror, strikes or other labor problems, Internet or other cloud service provider failures or delays, or denial of service attacks.