Terms of Service – BetterRX for Pharmacy

Last updated: September 14, 2021

The following Terms of Service (the “Terms”) constitute a legally binding agreement between you (whether you are a Customer or Authorized User, each as defined below) and BetterRX, LLC, including its affiliates and third-party service providers (collectively, “BetterRX,” “we,” “our,” or “us”). These Terms apply to your use of BetterRX’s proprietary online and mobile pharmacy software and technology, including the website located at https://delivery.betterrx.com, downloadable applications, any services offered on such platforms, and any software, application programing interfaces, servers, computers or networks used to provide such website and services (collectively, the “Services”) that assist in pharmacy management, including prescription data and fulfillment, insurance claim adjudication, and merchant services.

BY ACCESSING OR USING THE SERVICES IN ANY MANNER (WHETHER AUTOMATED OR OTHERWISE), YOU (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS OF SERVICE AND THE DOCUMENTS INCORPORATED HEREIN; (B) AFFIRM THAT YOU ARE AT LEAST 18 YEARS OF AGE (OR HAVE REACHED THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE); AND, AS APPLICABLE; AND (C) IF YOU ARE ACTING ON BEHALF OF A BUSINESS ENTITY, THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR OUR PRIVACY POLICY, DO NOT ACCESS OR USE THE SERVICES.

Mandatory Mediation and Time Limit for Claims: Except as otherwise set forth herein, these Terms require you to attempt to resolve disputes with BetterRX first through mediation, pursuant to Section 16.B. Further, these Terms limit the time period when you may bring a claim against BetterRX, pursuant to Section 16.C. Please review these sections carefully.

No Compliance Guarantee: USE OF THE BETTERRX SERVICES IS AT YOUR OWN RISK AND DOES NOT GUARANTEE COMPLIANCE WITH ANY LAW (AS DEFINED HEREIN), GUIDELINES, POLICIES, OR REGULATORY, INDUSTRY, OR ORGANIZATION STANDARDS. BetterRX encourages and recommends that you obtain legal counsel with regard to your pharmacy practices, services, business operations, and any legal or compliance issues for which you may have questions.

These Terms apply to all use of the Services, whether you are purchasing and using the Services as a Customer or accessing and using the Services as an Authorized User of Customer. “Customer” means a pharmacy that is (i) duly licensed or registered with the appropriate government authorities to fill prescription orders; and (ii) has entered into a BetterRX Pharmacy Customer Agreement for the use of the Services. “Authorized User” means individuals for whom access to the Services has been purchased by Customer and any individual accessing or using the Services on behalf of a Customer or in order to fulfill a Customer request or instruction (such as, any third-party contractor, subcontractor, agent or other representative of a Customer).

These Terms include and hereby incorporate additional policies, terms, and conditions based on your use or purchase of Services:

  • Privacy Policy https://www.betterrx.com/privacy-policy – This applies to all users, whether you are a Customer or Authorized User.
  • BetterRX Pharmacy Customer Agreement (“Customer Agreement”) – This applies to Customers.
Customers will purchase Services pursuant to a Customer Agreement. If any terms of the Customer Agreement are inconsistent with these Terms, these Terms shall control unless the Customer Agreement specifically references the inconsistency and states that it shall control.
  1. Changes to these Terms. We may revise and update these Terms from time to time in our sole discretion. The date that these Terms were last updated is set forth at the top of this page. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes.
  2. License and Restrictions. Subject to compliance with these Terms, BetterRX hereby grants you a non-exclusive, revocable, non-sublicensable, limited license to use the Services, in the case of Customers, solely for your internal business purposes, or in the case of Authorized Users, solely for the support of a Customer’s internal business purposes. You shall not, directly or indirectly, and shall not permit any third party to:
    • collect information from the Services using an automated software tool or manually on a mass basis;
    • use automated means to access the Services, or gain unauthorized access to the Services or to any account or computer system connected to the Services;
    • reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part, or otherwise attempt to derive or gain access to any source code of the Services;
    • obtain, or attempt to obtain, access to areas of the Services or our systems that are not intended for access by you;
    • “flood” the Services with requests or otherwise overburden, disrupt, or harm the Services or our systems;
    • restrict or inhibit other users from access or using the Services;
    • reproduce, publicly display, publicly distribute, or create derivative works of any Services, in whole or in part;
    • modify or delete any copyright, trademark, or other proprietary rights notices that appear on the Services;
    • access or use the Services for any unlawful purpose or otherwise beyond the scope of the rights granted herein;
    • copy, modify, change, or otherwise alter the Services in any manner unless given prior written consent that such modification, change, or alteration is permitted;
    • reconfigure any e-prescribing modules of the Services or disable any portion of a certified software product contained in the Services;
    • timeshare, rent, lease, lend, sell, license, sublicense, assign, market, distribute, publish, transfer, or otherwise make available the Services, or copies thereof, in whole or in part, to any third party;
    • access the Services for purposes of building a competitive product or service, or copying any features, functions, or content of the Services;
    • use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates or invades any intellectual property, privacy, or other right of any person;
    • use the Services or any part or element thereof for fraudulent, offensive, or obscene activities, or in a manner that violates any applicable Law or entices or assists others to carry out such illegal actions; or
    • post or transmit into the Services, or create, transmit, display, or make otherwise available any data or other information, content or software that violates applicable Law or contains viruses, worms, malware, Trojan horses, and other destructive or harmful codes.
    For purposes of these Terms, “Law(s)” means all applicable international, national, state, local, or other governmental authority codes, laws, orders (including executive orders), ordinances, regulations, requirements, rules, standards, conventions, statutes and treaties, including all amendments, modifications or supplements to any of the foregoing, for which Customer is required to comply, including but not limited to, (i) those that pertain to Customer’s operation of a pharmacy, (ii) the dispensing of prescriptions (e.g. federal and state controlled substance laws, prescription labeling requirements, etc.), (iii) state licensing statutes and regulations for Customer’s Authorized Users, such as pharmacists, pharmacy technicians, etc., (iv) federal and state privacy laws, including the Health Information Technology for Economic and Clinical Health Act of 2009, as amended (“HITECH Act”), the Health Insurance Portability and Accountability Act, Public Law 104-191, as amended (“HIPAA”), and the requirements of any regulations promulgated under either the HITECH Act or HIPAA, including the federal privacy regulations contained in 45 C.F.R. Parts 160 and 164, the federal security standards contained in 45 C.F.R. Parts 160, 162 and 164, and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162, each as may be amended from time to time (collectively, “HIPAA Rules”), (v)federal and state statutes and regulations pertaining to the prohibition of kickbacks, self-referrals and fee-splitting (collectively, the “Anti-Fraud and Abuse Laws”), including but not limited to the Anti-Kickback provisions of the Social Security Act and related regulations, the federal Physician Self-Referral Prohibition provisions of the Social Security Act and related regulations, and (vi) state and federal laws and regulations regarding data breach notifications.
  3. Aggregate Data; Feedback. Notwithstanding anything to the contrary in these Terms, you expressly grant BetterRX and its designated service providers the right to monitor your use of the Services and collect and compile data and information related to your use of the Services, including Pharmacy Data (as defined below) input into the Services, that is used by BetterRX in an aggregate and anonymized manner (“Aggregate Data”). You agree that BetterRX and its designated service providers may (a) collect, process, use and commercialize such anonymized Aggregate Data for any lawful purpose, including to improve the Services, develop new products and services, understand industry trends, create white papers, reports, or databases summarizing the foregoing, and generally for any legitimate purpose related to BetterRX’s business; (b) share Aggregate Data with third parties or publish any reports, or other summaries incorporating Aggregate Data; (c) use Aggregate Data to investigate and help address or prevent Services performance issues, actual or potential unlawful activity, or unauthorized use of the Services; and (d) disclose Aggregate Data upon the request of a government agency, law enforcement agency, court or as otherwise required by Law. All right, title and interest in and to Aggregate Data, is and shall remain the proprietary, confidential, copyrighted and trade secret property of BetterRX and its licensors or other BetterRX designees. If you send or transmit any communications or materials to BetterRX by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), BetterRX and its designees are free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. You hereby assign to BetterRX or its designee on your behalf, and on behalf of your employees, contractors, and agents, all right, title, and interest in and to such Feedback, and BetterRX or its designee is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever; provided, however, that neither BetterRX nor its designee is not required to use any Feedback.
  4. Ownership. You acknowledge that, as between you and BetterRX, BetterRX owns all right, title, and interest, including all intellectual property rights, in and to the Services and Aggregate Data. You have no right, license, or authorization with respect to any of the Services or Aggregate Data except as expressly set forth in these Terms. All other rights are expressly reserved by BetterRX. In furtherance of the foregoing, you hereby unconditionally and irrevocably grant to BetterRX or its designee an assignment of any right, title, and interest (that you may have or later obtain, by operation of Law or otherwise) in or to the Services and Aggregate Data, and any derivative works, including all intellectual property rights relating thereto. To the extent that such right, title, or interest cannot be assigned to BetterRX pursuant to this Section, you hereby grant to BetterRX or its designee a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display the Aggregate Data or derivative works. You shall cooperate and take such actions or provide such assurances, at no cost to BetterRX, as may be necessary to give full effect to these Terms. Without limiting the foregoing, the trademarks, service marks, and logos displayed on the Services are registered and unregistered marks of BetterRX and its licensors. You may not remove, obliterate, obscure, or conceal in any way BetterRX marks from the Services. You acknowledge that any information that may come to reside within the BetterRX Services, including all root, identity, and location-related information, does not belong to you. BetterRX reserves all rights not expressly granted in these Terms. Except for the limited rights and licenses expressly granted hereunder, nothing in these Terms grants by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property or other right, title, or interest in or to the Services.
  5. Account Registration and Security. Access to and use of the Services requires you to have an account and a valid password. You agree to provide true, accurate, current, and complete information about yourself as prompted by us, and you are responsible for keeping your information up to date. You will be responsible for taking all reasonable steps to ensure that no unauthorized person shall have access to your password or account. It is your sole responsibility to: (a) control the dissemination and use of activation codes and passwords; (b) authorize, monitor, and control access to and use of your account and password; and (c) promptly inform BetterRX of any need to deactivate a password. You may not share accounts, and you must adhere to best practices to maintain confidentiality and privacy obligations, including logging out of accounts when not in use. You are responsible and liable for all activities conducted through your account, regardless of who conducts those activities. You grant BetterRX and all other persons or entities involved in the operation of the Services the right to transmit, monitor, retrieve, store, and use your information in connection with the operation of the Services. You shall notify BetterRX without undue delay of any instance in which you have reason to believe any accounts may have been compromised. BetterRX does not assume any responsibility or liability for any information you submit, or for your users or third parties’ use or misuse of information transmitted or received using the Services. Customers providing access to any Authorized User shall: (i) exercise reasonable efforts to make all Authorized Users aware of rights and restrictions related to the Services as set forth in these Terms, as applicable to such Authorized User’s use of the Services, and (ii) cause Authorized Users to comply with such rights and restrictions. Without limiting the generality of the foregoing, as a Customer, you are responsible for (A) all acts and omissions of your Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if that act or omission would be deemed a breach of these Terms if taken by you; (B) ensuring that you only grant access and usage privileges to Authorized Users in a manner that conforms with all applicable Laws and regulations, including but not limited to those related to proper certification or licensure of Authorized Users; and (C) ensuring that the certification or licensing information and the dates for permitted use of the Services are correctly entered and updated as needed. BetterRX is not responsible for granting or monitoring user privileges to the Services or any incorrect entry or failure to update any certification or licensing information by you.
  6. User Content; Data; and PHI.
    1. User Content. Except as precluded herein, you hereby grant to BetterRX and its licensors a perpetual, irrevocable, non-exclusive, worldwide, transferable, sublicensable (through multiple tiers), royalty-free, fully paid-up right and license to use, reproduce, display, perform, distribute, and prepare any and all information (other than Pharmacy Data, as described below), materials, works, or other content that is uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by you or on your behalf by or through the Services, or that arise out of, result from, or are otherwise generated by your use of the Services (collectively “Content”), for BetterRX’s business and related purposes. You waive any and all claims that you may have now or may hereafter have in any jurisdiction to so-called “rental rights,” “moral rights,” and all rights of “droit moral” in the Content, even if the Content is altered or changed in a manner not agreeable to you. If you share Content, you represent and warrant to BetterRX that you own or control the rights in and to such Content and have the right to grant the rights above to us.
    2. Protected Health Information. In connection with BetterRX’s use and disclosure of protected health information (as defined in 45 CFR 160.103) that is created, received, maintained, or transmitted by BetterRX from you or on your behalf (“PHI”), to the extent BetterRX is deemed your business associate under the HIPAA Rules, BetterRX agrees that the parties will be subject to a Business Associate Agreement. “Business Associate Agreement” means a separate agreement entered by and between BetterRX and you (as applicable), pursuant to the requirements of HIPAA, to safeguard the Protected Health Information of patients.
    3. Pharmacy Data. For purposes of these Terms, “Pharmacy Data” means, collectively, all data and information entered into, uploaded or otherwise provided to the Services by you or your Authorized Users, which may include patient PHI, contact or other personal information uploaded by you or your Authorized Users. After your Services access ends, BetterRX may delete all personal data, except to the extent applicable Law requires storage of such personal data. If you upload Pharmacy Data to the Services, such Pharmacy Data must be in compliance with these Terms and applicable Law. By uploading or otherwise providing Pharmacy Data to the Services, you authorize BetterRX and its designated service providers to access, receive, collect, store, process, transmit, maintain, and possess (collectively, “Process”) the Pharmacy Data. Further, you expressly grant BetterRX and its designated service providers the right to use and analyze Pharmacy Data for the purposes of providing reports, data analysis, and other services to you. Without limiting the foregoing herein, you are responsible for ensuring that you do not create, transmit, display or make otherwise available any Pharmacy Data that violates the terms of these Terms; violates applicable Law; violates the rights of BetterRX, any patient or any third party; or is harmful (for example viruses, worms, malware and other destructive codes), offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, defamatory or hateful. As between the parties, you, and not BetterRX, are solely responsible for all Pharmacy Data that is uploaded, posted, transmitted, or otherwise made available through the Services, as well as for any actions taken by BetterRX or other users as a result of such Pharmacy Data.
    4. Your Provision of Data. You represent, warrant and covenant to BetterRX that during the Term: (i) you are in compliance with, and shall remain in compliance with, all applicable Law in connection with your possession, use, and provision of Pharmacy Data and your use of the Services in connection therewith, including, to the extent applicable, the HIPAA Rules; (ii) you have and will maintain the right, license, and all necessary consents and permissions to provide the Pharmacy Data stored in, collected by, or transmitted through the Services; (ii) you either own the Pharmacy Data or have the necessary licenses, rights, consents, and permissions in the Pharmacy Data to grant to BetterRX and its designated service providers the rights and authorizations in the Pharmacy Data granted to BetterRX under these Terms and to permit BetterRX to Process the Pharmacy Data as authorized hereunder; and (iv) the Pharmacy Data, BetterRX’s use thereof pursuant to these Terms, and BetterRX’s exercise of the license rights set forth in these Terms, do not and will not: (1) infringe, violate, or misappropriate any third-party right, including any privacy right, right of publicity, or other intellectual property rights; (2) violate any applicable Law; or (3) require BetterRX to obtain a license from or to pay any fees or royalties to any third party for the provision of the Services or for the exercise of any rights granted herein.
    5. Security of Pharmacy Data. You shall have in place appropriate technical, administrative, and physical safeguards to protect the privacy and security of personal information and PHI, and you shall reasonably safeguard personal information and PHI from any intentional or unintentional use or disclosure that is in violation of the applicable Laws and limit incidental uses or disclosures made pursuant to otherwise permitted or required disclosures. BetterRX will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Pharmacy Data, including measures for preventing access, use, modification or disclosure of Pharmacy Data by BetterRX personnel except (i) to provide the Services, (ii) to prevent or address service or technical problems with the Services, (iii) as compelled by Law in accordance with Section 9.B or an applicable Business Associate Agreement, or (iv) as you expressly permit or instruct in writing. BetterRX takes no responsibility and assumes no liability for any Pharmacy Data other than its express security obligations in this Section. BetterRX will reasonably assist you in complying with its obligations under applicable Law solely to the extent required to do so under applicable data protection and privacy laws, provided, however, that BetterRX is under no duty to investigate the completeness, accuracy, or sufficiency of any Pharmacy Data or your actions, instructions, or requests.
    6. Use of Data. You acknowledge that BetterRX and its third-party service providers may use data you share with us or that is obtained from your use of the Services, for purposes as governed under our agreements with third-party service providers, and/or as allowed under our Customer Agreement with you, our Privacy Policy, and any applicable Business Associate Agreement and HIPAA, including for purposes of (i) analyzing, identifying, designing or enabling the Services; (ii) developing marketing documentation for the Services; and (iii) providing sponsors with reports and information.
  7. Service Requirements.
    1. Accuracy. You are responsible for the accuracy and quality of the data you input into the Services. You acknowledge that BetterRX (i) has no control of or responsibility for your use of clinical content, and (ii) has no knowledge of the specific or unique circumstances under which the clinical content provided may be used by you. You agree that any data supplied is and will be in good condition, correct, complete, and in the proper format as set forth in the applicable materials. If data is not in good condition, you may be required to resubmit such data, or Customer may be subject to pay BetterRX or its designated service provider for reasonable costs in correcting such data. You agree that BetterRX is not engaged in the practice of medicine or pharmacy, and that your use of the Services does not absolve you of your obligation to exercise independent professional judgment in rendering healthcare services to patients. You acknowledge that the professional duty to the patient in providing pharmacy, healthcare, or similar services lies solely with the pharmacy, healthcare, or similar professional providing the services.
    2. Equipment. Access to the Services requires an appropriate equipment device (i.e. smart phone, iPad, computer or laptop) that has an internet connection and up-to-date version of a standard web-browser that uses either Chrome or Safari or another BetterRX-approved web browser. You are responsible for obtaining the necessary equipment for access to the Services and for all equipment, third-party services, and utilities necessary for the utilization of Services, including, without limitation, internet access, and appropriate telecommunications services. You understand and accept that the reduced performance or unavailability of your equipment or internet connection may result in reduced performance, interruption, or temporary termination of the Services. BetterRX and its service providers bear no responsibility for the performance or availability of your internet connection or other services provided to you by third parties. BetterRX does not warrant that such services will be uninterrupted, error-free, or completely secure. BetterRX does not and cannot control the flow of data to or from BetterRX’s or its third-party service provider’s network and other portions of the internet. Actions or inactions of unrelated third parties can impair or disrupt your connections to the internet or portions thereof. Accordingly, BetterRX disclaims any and all liability resulting from or related to such events.
    3. Updates. BetterRX and its third-party service providers may, with prior notice, require you to update or make modifications to the Services, or depending on your device settings, the Services may update automatically. Failure to adopt updates within the time period specified by BetterRX or its applicable service provider may result in certain Services being temporarily unavailable or suspended until such updates are made.
    4. Payment. Customer is responsible for paying any associated fees and costs incurred while using the Services, including a per prescription fee for any prescriptions entered into the Services. BetterRX will charge Customer at the intervals listed in its agreement with BetterRX. Payment of any additional fees is Customer’s responsibility. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) THAT YOU PROVIDE IN CONNECTION WITH ANY TRANSACTION THROUGH THE SERVICES. You further represent and warrant that (a) the credit card or other payment information that you provide is accurate and complete; (b) charges incurred by you will be honored by your credit card company or other payment institution; and (c) you will pay all charges incurred by you at the posted prices pursuant to these Terms or your Customer Agreement. BetterRX may use third-party payment processors, or other third-party service providers, in order to process your payment and fulfill your order. By submitting your payment information in connection with the Services, you grant BetterRX the right to provide such information to such third parties for the purpose of facilitating the completion of your Services or other transaction initiated by you or on your behalf. Payment is subject to validation and authorization by both the card company or payment processor and by BetterRX in order to maintain security and prevent fraud.
    5. Safeguards. You must reasonably safeguard personal information and PHI from any intentional or unintentional use or disclosure that is in violation of applicable privacy laws and limit incidental uses or disclosures made pursuant to otherwise permitted or required disclosures.
    6. Prescription Drug Claims. You acknowledge and agree that the transmission of all prescription drug claims must be in accordance with the procedures, data element standards, formats, codes, protocols, and edits set forth in the then current National Council for Prescription Drug Programs (“NCPDP”) standards (“Specifications”). You must conform your system to changes in the Specifications (as governed by the National Council for Prescription Drug Programs standards) within the number of days which BetterRX’s third-party service providers may designate in the notice regarding such change.
    7. Applicable Laws and Regulatory Compliance. You are responsible for knowing and complying with all Laws related to you and your Authorized Users’ use of the Services, and you represent, warrant, and covenant, as applicable, that (i) you shall comply with all applicable Laws, including those related to controlled substances, pharmacies, pharmacy services, pharmacists and all other licensees in Customer’s workforce (e.g. pharmacy technicians); (ii) you shall have all necessary licenses, certifications, registrations, permits, and any other conditions required for you to perform pharmacy services or lawfully operate a pharmacy and perform its business operations as applicable, including but not limited to those obligations imposed by federal, state, or local government entities or agencies (e.g. DEA, State Pharmacy Board, etc.) or professional organizations; (iii) your use of the Services are within the scope of your practice and licensure; (iv) your use of the Services are in conformity with the standard of care for your profession; (v) any billing of insurance companies or third-party payers for your professional services which include the Services are compliant and proper; and, in using the Services, you agree only to access information for which you have a legal right and a legitimate business purpose. Without limiting the foregoing, you are solely responsible for knowing all Laws and ensuring your use of the Services complies with all Laws. Additionally, in using the Services, you agree only to access information for which you have a legal right and a legitimate business purpose. As between the parties, you will be solely responsible and liable for ensuring the Services meet your regulatory requirements and obligations.
    8. Necessary Consents. You will obtain all requisite permits or other permissions in order to utilize the capabilities of the Services in compliance with applicable Laws and regulations, as amended from time to time, including, but not limited to HIPAA, and to carry out the purposes of the Terms. You understand the confidential nature of clinical patient information and agree that you are responsible for maintaining any and all necessary measures to protect and maintain such confidentiality. BetterRX shall not be liable for damages or claims arising from the breaches or potential breaches of patient information maintained by you.
    9. Additional Rules and Guidelines. You shall comply with all reasonable conditions, rules, and regulations which may be established or specified by BetterRX and its service providers from time to time and as may be set forth in any manuals, materials, documents, or instructions furnished to you by BetterRX or its designated service provider, provided the same are not in conflict with any provisions of these Terms.
  8. Support and Availability. BetterRX will exercise commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for the following events: (a) planned downtime or maintenance (with respect to which BetterRX shall use commercially reasonable efforts to notify you through the Services in advance), (b) any unavailability caused by a Force Majeure Event (as defined in Section 16.H), or (c) any disabling, suspension, or termination pursuant to the terms of these Terms. Further, BetterRX will use commercially reasonable efforts to provide live Service support via telephone 24 hours a day, 7 days a week. Other non-live support and tutorials may be made available within the Services platform. At Customer’s request, BetterRX may provide in-person trainings to Customer. BetterRX may charge Customer additional fees and costs for such additional support and agrees to communicate such charges to Customer prior to any such trainings.
  9. Confidential Information.
    1. Definition. “Confidential Information” means information of a party (“Discloser”) that is not generally known and that is proprietary to Discloser, its clients, affiliates, or service providers or that Discloser or any of its affiliates or service providers is obligated to treat as proprietary or confidential, including: (i) trade secret information about Discloser and its products or services; (ii) information concerning Discloser’s business, as Discloser has conducted it or as it may conduct it in the future; (iii) information concerning any of Discloser’s past, current, or possible future products, including information about Discloser’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling or leasing; (iv) in the case of you as Discloser, the Pharmacy Data; (v) in the case of BetterRX as Discloser, the Services; and (vi) information about the relationship between Discloser and the other party hereto (“Recipient”). Confidential Information does not include information (1) which is or becomes publicly available from a source other than Recipient, (2) which is received by Recipient from a source which has the right to disclose such information and did not obtain the information directly or indirectly from employees or agents of Discloser, (3) which Recipient establishes by documentary evidence was in Recipient’s possession prior to Discloser’s disclosure; (4) that was or is independently developed by Recipient without using any confidential information of Discloser; or (5) that Discloser has agreed in writing may be disclosed by Recipient.
    2. Use of Confidential Information. Recipient shall not, either during or after the Term, use Discloser’s Confidential Information for any purpose other than its performance under these Terms or disclose Discloser’s Confidential Information to any person or entity not authorized by Discloser to receive it, except that Recipient may disclose Discloser’s Confidential Information to its employees and agents (including independent auditors, professional advisors and required government agencies) (collectively, “Permitted Recipients”) who have a reasonable need to know such Confidential Information for purposes of performing Recipient’s obligations hereunder and who are obligated to maintain the confidentiality of and refrain from using such Confidential Information under terms at least as protective as those set forth herein. Recipient agrees that it will reasonably cooperate with Discloser in any investigation relating to the improper use or disclosure of Confidential Information by Recipient or its personnel. Recipient will be responsible for the breach of this Section by any of its Permitted Recipients. Discloser shall be entitled to seek injunctive relief for any violation of this Section. Upon Discloser’s reasonable request upon termination or expiration of these Terms or at any time during the Term, Recipient will promptly turn over to Discloser or destroy all copies, reproductions, and specimens of Discloser’s Confidential Information in Recipient’s possession, except that Recipient will not be obligated to destroy electronically stored Confidential Information to the extent that it is contained in an archived computer system backup in accordance with Recipient’s security or disaster recovery procedures, so long as such data or records, to the extent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business or used except as required for backup or data recovery purposes. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to the extent compelled by Law or a court of competent jurisdiction to do so. In such instance, Recipient will use commercially reasonable efforts to provide Discloser with prior notice of the compelled disclosure (to the extent legally permitted) and Discloser shall provide reasonable assistance, at its cost, if Discloser wishes to contest the disclosure. If Recipient is compelled by Law to disclose Discloser’s Confidential Information as part of a civil proceeding to which Recipient is a party, and Discloser is not contesting the disclosure, Recipient shall be responsible for its cost of compiling and providing secure access to that Confidential Information.
  10. Privacy Policy. You acknowledge and agree that all information collected by BetterRX is subject to our Privacy Policy [INSERT LINK]. By using the Services, you consent to all actions we take with respect to your information in compliance with our Privacy Policy.
  11. Change, Suspension, or Termination of Access. BetterRX and its service providers reserve the right to make changes to, suspend, or discontinue (temporarily or permanently) the Services or any portion thereof at any time. Without limiting the foregoing, BetterRX and its third-party service providers may suspend or terminate your access to the Services if: (a) there is a threat or attack on the Services or other event that may create a risk to the Services, BetterRX, BetterRX’s third-party providers, you, or any or any other BetterRX customer; (b) your use of the Services disrupts or may disrupt the Services or may subject BetterRX or any third-party to liability; (c) subject to applicable Law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (d) you breach these Terms or you are otherwise misusing the Services; (e) Customer fails to make payment when due; or (f) suspension is otherwise reasonably necessary or prudent (suspension for any of the foregoing reasons, a “Services Suspension”). BetterRX or its third-party services provider may, in its sole discretion, resume providing access to the Services after the event giving rise to the Services Suspension is cured. BetterRX and its service providers shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur as a result of a Services Suspension.
  12. Disclaimer; Limitation of Liability.
    1. Disclaimer of Warranties. IT SHALL BE YOUR RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF THE SERVICES FOR YOUR USE. THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH NO WARRANTIES OF ANY KIND, AND BETTERRX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER BETTERRX NOR ANY PERSON ASSOCIATED WITH BETTERRX MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER BETTERRX NOR ANYONE ASSOCIATED WITH BETTERRX REPRESENTS OR WARRANTS THAT THE SERVICES WILL BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OR BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES WILL GENERATE ANY PARTICULAR RESULTS OR OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
    2. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BETTERRX, ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, LICENSORS, OR SERVICE PROVIDERS (COLLECTIVELY, “BETTERRX PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR (I) ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SERVICES, INCLUDING ANY BODILY INJURY, HARM, LOSS OF LIFE, OR IMPAIRMENT TO HEALTH OR WELLBEING THAT MAY ARISE OUT OF OR RESULT FROM THE USE OF, OR FAILURE TO USE, THE SERVICES; (II) LOST REVENUES OR PROFITS; (III) DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, REPUTATION, OR GOODWILL; (IV) LOSS OR CORRUPTION OF DATA; (V) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; (VI) FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; (VII) YOUR FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (VIII) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (IX) BREACHES IN SYSTEM SECURITY; (X) ANY ERRORS OR OMISSIONS IN THE SERVICES; OR (XI) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT ANY OF THE BETTERRX PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COLLECTIVE CUMULATIVE AND AGGREGATE LIABILITY OF THE BETTERRX PARTIES ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE LESSER OF: THE TOTAL AMOUNT ACTUALLY PAID TO BETTERRX PURSUANT TO THE TERMS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR FIVE THOUSAND U.S. DOLLARS (USD $5,000). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS OF SERVICES FAIL OF THEIR ESSENTIAL PURPOSE. USE OF THE SERVICES IS AT YOUR SOLE RISK. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF BETTERRX SHALL BE LIMITED IN ACCORDANCE WITH THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.
    3. Exclusions. Some jurisdictions do not allow the exclusion or limitation of certain warranties or consequential damages, so some of the exclusions or limitations in this Section may not apply to you.
  13. Responsibility for Use. You are responsible and liable for all uses of the Services that occur through access thereto provided by you, directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Services by any other person or entity to whom you may provide access to or use of the Services, whether such access or use is permitted by or in violation of the Terms (including any user accessing the Services using your username or password).
  14. Indemnification.
    1. By BetterRX. BetterRX will indemnify, defend, and hold harmless Customer, its affiliates, and its and their respective employees, contractors, agents, directors, officers, and Authorized Users from and against all damages, liabilities (including costs of litigation or other disputes and attorneys’ fees), costs and expenses (“Liabilities”) incurred from any claims, suits or proceedings (“Claims”) brought by third parties to the extent arising from an allegation that your use of the Services in compliance with these Terms infringes a valid U.S. patent issued prior to the Effective Date, Berne Convention copyright or U.S. trade secret, except that BetterRX shall not have any obligations under this Section if the alleged infringement or violation is based upon: (i) use of the Services other than as set forth herein and in the then-current version of the documentation for the Services; (ii) any modification or alteration to the Services performed by anyone (including Customer) other than BetterRX or its authorized agents (other than modifications constituting standard implementation of BetterRX-provided options, enhancements and features for the Services); (ii) BetterRX’s compliance with your designs, specifications or instructions if BetterRX is unable to follow such designs, specifications or instructions without infringement; (iv) combination, operation, or use of the Services with software, hardware, information, data, or other materials, not approved or supplied by BetterRX, if infringement (including contributory infringement) would have been avoided by use without such software, hardware, information, data, or other materials; (v) use of a superseded or altered release of the Services if the infringement would have been avoided by the use of the current, unaltered release of the Services; or (vi) use of the Services after BetterRX’s notice to cease use of the Services due to a claim of infringement (collectively, the “BetterRX Indemnification Exceptions”).
    2. By You. You agree to indemnify, defend, and hold harmless BetterRX, its affiliates, and its and their respective employees, contractors, agents, directors, officers, and service providers from and against all Liabilities incurred from Claims brought by third parties to the extent arising from (i) your acts or omissions in connection with the Services; (ii) your breach of these Terms, any Customer Agreement, or any third-party agreements relating to the Services (including any Business Associate Terms under the HIPAA Rules to which you are a party); (iii) your representations and warranties made to BetterRX, its affiliates or third parties; (iv) any claim related to your or any third party’s use or misuse of the Services under your account, including allegations of violation of Law; (e) your violation of any Law, including the HIPAA Rules; (v) the Pharmacy Data; (vi) infringement, misappropriation or violation of the rights of any other person or entity (including any third-party intellectual property rights); or (vii) any BetterRX Indemnity Exception.
    3. Corrective Actions. In the event a court of competent jurisdiction holds that the Services or any component thereof infringes, misappropriates or otherwise violates any third-party intellectual property rights, or if BetterRX believes such a claim may arise, BetterRX may, in BetterRX’s sole discretion and at no cost to you: (i) procure for Customer and its Authorized Users the right or license to continue to use the Services; (ii) modify the Services to render it non-infringing but substantially functionally equivalent to the Services prior to such modification; or (c) if the alternatives described in the foregoing clauses (i) and (ii) are not commercially practicable, terminate these Terms and the applicable Customer Agreement, in which case BetterRX shall refund to Customer the pro rata portion of any Fees paid by Customer to BetterRX for unused use of the Services.
    4. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, THIS SECTION 14 STATES BETTERRX’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR VIOLATION, INFRINGEMENT, OR MISAPPROPRIATION OF ANY IP RIGHT, WHETHER SUCH ACTION, CLAIM OR PROCEEDING IS BASED ON BREACH OF WARRANTY OR ANY OTHER CAUSE OF ACTION.
    5. Each party’s indemnification obligations are conditioned upon the indemnified party (i) giving prompt notice of the claim to the indemnifying party (provided, however, that failure of the indemnified party to provide such notice will not release the indemnifying party from any of its indemnity obligations except to the extent that the indemnifying party’s ability to defend such claim is materially prejudiced thereby); (ii) granting sole control of the defense or settlement of the claim or action to the indemnifying party, provided, however, that BetterRX reserves the right to assume the exclusive defense and control of any action subject to indemnification by you, and in such event you agree to cooperate with us and indemnify us in connection with our defense of such action; and (iii) providing reasonable cooperation to the indemnifying party and reasonable assistance in the defense or settlement of the claim, at the indemnifying party’s request and expense. The indemnified party may, at its option, participate in such defense or settlement with its own counsel at its own expense.
  15. Third-Party Service Providers.
    1. Generally. The Services may display, include, or make available third-party content, including data, information, applications, and other products, services, or materials, or links to third-party websites or services (collectively, “Third-Party Materials”). You acknowledge and agree that BetterRX is not responsible for any Third-Party Materials, including their accuracy, completeness, timeliness, validity, legality, decency, quality, or any other aspect thereof. Any Third-Party Materials, including third-party services, that are provided through the Services are provided on an as is basis. BetterRX does not assume and will not have any liability to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions. You are responsible for complying with all third-party terms of service or other terms related to Third-Party Materials. To the extent that you use services provided by third-party service providers, such providers may, without notice, access your pharmacy practice management system to maintain the integrity of the claims transaction processing and adequate performance of the networks.
    2. RelayHealth, NotifyRx, and Patient AssistanceRx Services. The following terms apply to RelayHealth, Patient AssistanceRx, and NotifyRx Services provided by RelayHealth. You acknowledge and agree that:
      1. Not all Patient AssistanceRx services offered by BetterRX’s third-party service provider RelayHealth will be available to you. Such use is at third-party service provider’s sole discretion and may be subject to additional terms given by such third-party. RelayHealth Intelligent Network may only be used in connection with one business location for each Authorized User and solely for your internal business use and for no other purpose.
      2. Each Patient AssistanceRx Service is informational in nature, and nothing is intended to interfere with a practitioner’s exercise of independent judgment or to induce a practitioner to influence choice of any product that may be paid for, in whole or in part, by any program of governmental health care reimbursement.
      3. “Program Sponsor” means any pharmaceutical manufacturer who has developed a patient electronic voucher program and has contracted with RelayHealth to facilitate such program. As a condition of access to any Patient AssistanceRx Service provided through the Services and to be eligible for any fees paid in connection with a denial conversion patient co-payment assistance electronic voucher program (“Program”) developed by a Program Sponsor for the Program product that is administered and managed by RelayHealth, you shall (1) comply with the terms and conditions applicable to the Patient AssistanceRx Service; (2) comply with all Laws and regulations applicable to the Patient AssistanceRx Service and the Program; (3) secure any authorizations necessary to participate in the Patient AssistanceRx Service and the Program; (4) for a prescription claim successfully processed through the RelayHealth Intelligent Network, route all subsequent prescription claim transactions related to that prescription claim for each individual participating in any of the Services contemplated by this Section through the RelayHealth Intelligent Network; and (5) not dynamically route any claims for any such individual through a second prescription claims transaction network (this condition is intended to ensure that the eVoucherRx service sees all transactions (i.e., claim requests and claim reversals) associated with a unique prescription dispensing). In addition, you shall enable, or cause to be enabled, its pharmacy management software to support the Patient AssistanceRx Service.
      4. You will (1) render pharmaceutical services to participants and accept payment for such services; (2) not bill any participant for benefits covered under the program except to the extent of any deductible or co-payment left unsatisfied by the applicable Program Sponsor and remaining as the participant’s liability; (3) collect from participants all co-payments, if any, as required herein; and (4) communicate to a participant any applicable Program Message and pursue every commercially reasonable means to enable its practice management system in such a way that the complete Program Message may be viewed by you and printed for delivery to the patient. In the event that claims transaction processing performance degradation or failure occurs as a result of the Program Message, RelayHealth, at its discretion and without liability, reserves the right to bypass the generation of the Program Message in order to maintain the integrity of the claims transaction processing and adequate performance of the RelayHealth Intelligent Network at your retail locations. “Program Message” means the Program specific message to be generated by RelayHealth and sent to you over the RelayHealth Intelligent Network. The Program Message will be delivered in Field IDs 504-F4 (Message) or 526-FQ (Additional Message Information) of the NCPDP Telecommunication Standard. The Program Message may be returned to the pharmacy truncated from 504-F4 to 526-FQ and will be no longer than 200 characters in length.
      5. You agree, at RelayHealth’s reasonable request, to submit to periodic audits of your applicable books and records related to your use of Patient Assistance Rx Service and submit reasonable documentation to RelayHealth to confirm compliance with any Patient AssistanceRx Service. The cost of such audits shall be borne by RelayHealth; provided, however, if such audit uncovers a violation by you, you shall be liable for the amount of any fees paid in error, plus interest at the lesser of one and one half percent (1.5%) or the lawful maximum per month since such error, plus the cost of such audit. Any such amount shall be collected by Reseller from you and paid in full to RelayHealth at RelayHealth’s request.
      6. You acknowledge and agree that RelayHealth may access and use its historical and prospective prescriptions claims data processed over the RelayHealth Intelligent Network by RelayHealth (1) analyzing, identifying, designing or enabling a PatientAssistanceRx Service; (2) developing marketing documentation for such services for both Program Sponsors and you (where such marketing documentation for you will include your data as detail, but all other data will be aggregated and de-identified in accordance with HIPAA); and (3) providing the Program Sponsors with reports and information which will be aggregated and de-identified in accordance with HIPAA. These reports may contain information aggregated by NABP number. In addition, you, hereby authorize RelayHealth to include your name in its list of customers who have agreed to receive Patient AssistanceRx Services where such list may be provided to potential Program Sponsors.
      7. If you fail to comply with this Section, BetterRX or RelayHealth may directly suspend or terminate your participation in such Services immediately upon written notice.
      8. Certain services require the following terms pursuant to requirements of Centers for Medicare & Medicaid Services (“CMS”) or RelayHealth:
        1. McKesson and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
        2. Medicare Eligibility Transactions. It is in CMS’s interest to ensure that an NCPDP E1 electronic health care eligibility benefit inquiry or response to an electronic benefit inquiry (“Eligibility”) transactions are requested solely for Medicare purposes and that the data provided in the response is used solely to support coordination of benefits in accordance with guidance provided by CMS. You acknowledge that you shall ensure that Eligibility transactions for Medicare are requested solely for Medicare purposes and that the data provided in the response is used solely to support coordination of benefits in accordance with guidance provided. You acknowledge that pharmaceutical manufacturer co-pay assistance coupon programs are not considered prescription drug coverage. Accordingly, you represent (x) you will not use any Eligibility (E1) transactions for the purpose of ruling out Medicare coverage in order to ensure coupon use would not be in violation the Anti-Kickback provision (Section 1128B(b) of the Social Security Act); and (y) you will only request E1 transactions in accordance with the purposes described herein.
        3. CMS has the right to audit, through RelayHealth or any designated subcontractor, your compliance with the use of the data provided to you by RelayHealth to ensure your compliance with the guidance provided by CMS and the terms hereof. The costs for any such audit, other than your internal costs in responding to any document requests or meeting requests, shall be borne by CMS.
    3. Surescripts Services. The following terms apply to your use of Surescripts Services provided by Surescripts LLC. “Surescripts Services” means the service that facilitates the transmission of eligibility status information to end users (i.e., a licensed pharmacy that is duly licensed or registered with the appropriate government authority to fill prescription orders) using the Surescripts network in connection with the treatment of a specific patient. You acknowledge and agree that:
      1. You must provide an electronic listing of all Authorized User locations with all demographic information in the format specified by Surescripts.
      2. You shall not: (1) use the Surescripts network in any manner which would allow the general public access thereto; or (2) allow any use of the Surescripts network for the benefit of any person or entity which is not an Authorized User.
      3. Surescripts shall own all directory and related information on you that shall come to reside within the Surescripts network, whether provided by BetterRX or otherwise, including all root, identity, and location-related information, solely for purposes of fulfilling its obligations in connection with the Superscripts Services. You shall maintain data and records relating to your use of the Superscripts Services and the Surescripts network for a period of five (5) years from the date that the data was received or transmitted or the record was created, or for such longer time as is required by applicable Law. You shall permit Superscripts and BetterRX to access, inspect, and audit such data and records for the purpose of verifying compliance with the terms and conditions hereof and your use of the Superscripts Services.
      4. Surescripts shall be a third-party beneficiary to these Terms with respect to the use of the Surescripts Network or use of the Surescripts Services. Notwithstanding the foregoing, you will not be deemed to be a third-party beneficiary to any agreement between BetterRX and Superscripts.
  16. Miscellaneous.
    1. The relationship of the parties is solely of independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between you and BetterRX. Neither party shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party. BETTERRX AND ITS SUPPLIERS, LICENSORS, SERVICE PROVIDERS AND SUBCONTRACTORS SHALL HAVE NO LIABILITY TO ANY CLIENT OR PATIENT OF CUSTOMER OR ANY AUTHORIZED USER BY VIRTUE OF THESE TERMS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THESE TERMS SHALL NOT CONVEY UPON ANY SUCH CLIENT, PATIENT, OR OTHER THIRD PARTY ANY RIGHTS HEREUNDER, AND NO AUTHORIZED CLIENT, PATIENT, OR OTHER THIRD PARTY SHALL BE DEEMED A THIRD-PARTY BENEFICIARY HEREOF.
    2. Dispute Resolution; Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of Utah without regard to its principles of conflicts of Law. In the event of a dispute, controversy or claim arising out of, or in relation to these Terms, including the formation, validity, breach or termination thereof (in each case, including non-contractual disputes or claims), the parties shall attempt to solve the matter amicably in mutual negotiations. In the event a mutually acceptable resolution cannot be reached within a reasonable time, the parties shall attempt to solve the matter through mediation in accordance with Utah Code § 78B-10-101 et seq. (Utah Uniform Mediation Act and referred to as “UUMA”). If there are any conflicting provisions between UUMA and these Terms, the provisions in these Terms shall govern. Mediation shall be conducted in Salt Lake County, Utah within sixty (60) days from a party receiving written notice of a dispute or claim from a complaining party. The notice must contain a detailed description of the nature of the dispute or claim and the requested relief sought. A neutral mediator shall be selected as mutually agreed upon by the parties with both parties equally sharing the mediation costs and paying their own legal fees and costs. If the parties are unable to resolve a dispute pursuant to the mandatory mediation referenced above, either party may subsequently file a judicial action. The prevailing party in any litigation is entitled to recover its reasonable attorneys’ fees, other fees, and costs incurred in the litigation, in addition to any other relief to which that party may be entitled. The following claims are not subject to the mandatory mediation provisions of this Section: an order of injunctive relief and any related incidental damages; an order to prevent the disclosure of or misuse of confidential information, trade secrets, or other intellectual property or proprietary information. Any judicial action shall be brought exclusively in the Utah state courts or in the Utah federal courts of the United States, located in Salt Lake City, Utah. The parties shall submit to the jurisdiction and venue of such courts for the purposes hereof and hereby irrevocably waive all objections related to venue or personal jurisdiction. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY. Except as expressly set forth herein, any remedy of BetterRX set forth in the Terms is in addition to any other remedy afforded to BetterRX, at Law or in equity.
    3. Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE SUCH CAUSE OF ACTION OR CLAIM MAY BE PERMANENTLY BARRED.
    4. Survival. Termination will not limit any of BetterRX’s rights or remedies at law or in equity. Without limiting the foregoing, the following rights and obligations shall survive termination of this Terms: (i) your representations and warranties, indemnification obligations, and use restrictions; (ii) BetterRX’s limitation of liability, disclaimer of warranties, and intellectual property rights; and (iii) any other right or obligation of the parties in this Terms that, by its nature, should survive termination of this Terms, including the following provisions: Sections 3, 4, 6.A, 6.D, 7.D, 7.G, 9, 12, 14.B, 14.C, 14.D, 14.E, and 16.
    5. Export. The United States and certain foreign countries may regulate the export and re-export of technology originating in the United States. Exporting and re-exporting may include the electronic transfer or dissemination of content and software to foreign countries, certain foreign nationals, and certain specially designated nationals. You agree to abide by all applicable provisions of export and import laws, including the Export Administration Act and the Arms Export Control Act.
    6. Electronic Communications; Notices. Except where otherwise required by Law, the communications between you and BetterRX via the Services use electronic means and will be addressed to you, or if you are a Customer, to your primary point-of-contact as designated at the time your account is created (or such other point-of-contact provided to BetterRX during the Term in accordance with this Section). You consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreement, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Except as otherwise specified in these Terms, all notices, requests, consents, authorizations and other communications to BetterRX that are required or permitted by these Terms will be in writing and will be effective upon (i) personal delivery, (ii) the second business day after mailing, or (iii) the day such notice is sent by email (or if such day is not a business day, the following business day). Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. Notices to BetterRX should be addressed to BetterRX at: hello@betterrx.com or 299 S. Main St., Suite 1300, PMB 91114, SLC, UT 84111.
    7. Entire Agreement. These Terms and any documents referenced herein, including our Privacy Policy https://www.betterrx.com/privacy-policy, and your Customer Agreement (if you are a Customer), constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
    8. Force Majeure. BetterRX shall not be liable for any delay or failure to perform its obligations under these Terms to the extent prevented from doing so by a Force Majeure Event. BetterRX shall promptly exercise commercially reasonable efforts to overcome or cure the Force Majeure Event to the extent within its power to effect such cure and gives prompt notice to you, to the extent possible or permitted under the circumstances, upon discovery of such Force Majeure Event. “Force Majeure Event” means any circumstances beyond a party’s reasonable control, including, for example, an act of God; act of government; flood; fire; earthquake; civil unrest; act of terror; pandemic; disease epidemic; public health emergency; strike or other labor problem; Internet connectivity issues; Internet service provider failure or delay; denial of service attack; and interruption, outage, or other problems with any software, hardware, system, network, facility, or third party services.
    9. Waiver and Severability. No modification, amendment, or waiver of any provision of these Terms will be effective against BetterRX unless in writing and signed by an authorized representative of BetterRX. Any failure to act by us with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit BetterRX’s rights with respect to such breach or any subsequent breaches. If any portion of these Terms is determined by a court of competent jurisdiction to be invalid or unenforceable, such provision, to the extent that it shall be invalid or unenforceable, shall be considered separate and severable from these Terms, and the remainder of these Terms, and any portion of such provision to the extent that it shall not be invalid or unenforceable, shall not be affected and shall be valid and may be enforced to the fullest extent permitted by Law.
    10. Assignment. You may not assign these Terms without the prior written consent of BetterRX, which consent in each case may be withheld in BetterRX’s sole discretion. Your sale of all or substantially all of your business or assets will not relieve you of your obligations under these Terms, unless BetterRX consents, in writing, to the proposed sale and the buyer assumes the obligations of these Terms via a written agreement reviewed by and agreed to by BetterRX. BetterRX may subcontract with other business entities or contractors for the provision of Services. Notwithstanding anything to the contrary, BetterRX expressly reserves the right to assign these Terms and to delegate any of its obligations hereunder, and BetterRX may assign these Terms as a result of the sale of substantially its business or assets or as a result of a reorganization, merger or business consolidation. Any action or conduct in violation of the foregoing shall be void and without effect.
    11. Construction. Any headings contained in these Terms are used only as a matter of convenience and reference, and are in no way intended to define, limit, expand or describe the scope of these Terms. For purposes of these Terms, (i) the singular includes the plural and vice versa; (ii) reference to any document, Law, or standard means such document, Law, or standard as amended from time to time; (iii) “include” or “including” means including without limiting the generality of any description preceding such term; (iv) the term “or” is not exclusive; (v) the phrase “these Terms” and the terms “hereof,” “herein,” “hereby,” “hereunder” and derivatives or similar words refer to this entire Terms; and (vi) all references to money shall be in United States dollars. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of these Terms.
  17. Contact Us. You may contact us by calling 855-590-2100, sending us an email at hello@betterrx.com, or writing to us at 299 S. Main St., Suite 1300, PMB 91114, SLC, UT 84111.