LIVI TERMS OF SERVICE AGREEMENT
THIS TERMS OF SERVICE AGREEMENT IS A LEGALLY BINDING AGREEMENTbetween you and PharmRight Corporation. When you click "Submit",check a box, or otherwise provide consent during the process of ordering,activating, or using any Equipment and Services, you and we are agreeing to bebound by this agreement to the same extent as if you and we had manuallyexecuted a paper copy of this agreement, and you understand that you areentering into a binding agreement electronically, and you intend to enter intothis agreement electronically.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANYOTHER AGREEMENT BETWEEN PHARMRIGHT AND CUSTOMER, PHARMRIGHT MAY NOT CONTINUE TOCONDUCT BUSINESS, AND MAY NOT BE ABLE TO PROVIDE THE SYSTEM OR PERFORM ITSOTHER OBLIGATIONS HEREUNDER, FOR THE ENTIRE TERM SET FORTH IN CUSTOMER’S ORDEROR ANY PERIOD OF TIME BEYOND SUCH TERM.
These Terms and Conditions, the Terms of Service (as definedbelow), and any addenda attached hereto or referenced herein (each of which arehereby incorporated by this reference) (collectively, this “Agreement”),describe the relationship between PharmRight and the Customer identified on theOrder (“Customer”). This Agreement will become effective as of the dateexecuted by Customer (the “Effective Date”). Customer acknowledges and agreesthat these terms and conditions for the Equipment, Services, Site, and System(each as defined below and may be updated from time to time) form a part ofthis Agreement and describe the rights, obligations, restrictions andliabilities of the parties with respect to the Equipment, Services, System, andSite. Capitalized terms used but not defined herein shall have the meanings setforth in the Order. Words that are capitalized have the specific meanings setforth in the “Definitions” section below.
1.1 “Documentation” means user guides, instructions, manuals orvideos provided by or on behalf of PharmRight in connection with the provisionand use of the System.
1.2 “End User” has the meaning assigned in Section 6.2.
1.3 “Equipment” means the Livi™ medication management system whichcommunicates via the Internet, cellular communications networks, or throughother electronic means with the PharmRight servers, including any related orconnected hardware and all software or firmware installed, embedded, orutilized therein.
1.4 “PharmRight” or “we” or “us” means PharmRight Corporation.
1.5 “Order” means an electronic or written order to purchase orlease the Equipment and use the Services pursuant to the terms set forth on theOrder.
1.6 “Services” means the network communication, remote monitoring,optional notifications services, and customer support services provided byPharmRight under this Agreement and the proprietary PharmRight software used inconnection with the Equipment and/or provided on a hosted orsoftware-as-a-service basis on the Site, as described in an applicable Order.
1.7 “Site” means PharmRight’s website located at www.liviathome.com.
1.8 “System” means the Equipment and the Services.
1.9 “Terms of Service” means this agreement regarding access anduse of the Equipment and Services between PharmRight, Customer and each EndUser. (A copy of the Terms of Service agreement can also be found on the site.)
2. System and Services
2.1 Provision of Services. During the term of this Agreement,PharmRight will provide the Services (to Customer and End Users) for use withthe Equipment in accordance with this Agreement and pursuant to the Terms ofService. In order to use or access certain features of the Equipment andServices, each End User may be required to provide a personal computer,smartphone, tablet, software, an Internet browser, and/ or access to theInternet.
2.2 Modifications of Service. The Services may include one or moreof the following: (a) the enabling of wireless transmission of data betweenEquipment placed in the End User’s premises and a network operations center;(b) providing remote access to data collected by the Equipment via Customer’sPharmRight account; (c) providing email, SMS and other notifications toCustomer regarding Equipment activity; (d) providing periodic email updates toEnd Users; and (e) providing automated updates to Equipment firmware.PharmRight reserves the right to modify, add or eliminate Services from time totime without prior notice.
2.3 LIMITATIONS. THE SYSTEM IS NOT FAIL-SAFE AND IS NOTDESIGNED OR INTENDED FOR USE IN SITUATIONS REQUIRING FAIL-SAFE PERFORMANCE ORANY USE IN WHICH AN ERROR OR INTERRUPTION IN THE SYSTEM OR SERVICES COULD LEADTO SEVERE INJURY TO BUSINESS, PERSONS, PROPERTY OR ENVIRONMENT. THE SYSTEM ISNOT INTENDED TO PROVIDE REAL-TIME DATA AND SHOULD NOT BE RELIED UPON FOREMERGENCY INTERVENTION OR AS A SUBSTITUTE FOR MEDICAL CARE.
2.4 NOT INTENDED AS MEDICAL ADVICE OR A PHARMACY SYSTEM. THESYSTEM IS NOT INTENDED FOR DIAGNOSIS OR AS A SUBSTITUTE FOR MEDICAL CARE,PHARMACY SERVICES, OR PATIENT MONITORING OR TO PROVIDE AUTOMATED TREATMENTDECISIONS AND SHOULD NOT BE USED AS A SUBSTITUTE FOR PROFESSIONAL HEALTHCAREJUDGMENT OR PHARMACY SERVICES.
2.5 Force Majeure. PharmRight will not be liable for anyinconvenience, loss, liability, or damage resulting from any interruption ofthe System directly or indirectly caused by, or proximately resulting from, anycircumstances beyond PharmRight’s reasonable control, including, but notlimited to, causes attributable to Customer or Customer’s property; failure ofany third party telecommunications network; strike; labor dispute; riot orinsurrection; war; explosion; malicious mischief; fire, flood, lightning,earthquake, wind, ice, extreme weather conditions or other acts of God; failureor reduction of power; or any court order, law, act or order of government restrictingor prohibiting the operation or delivery of the System.
3.1 INSTALLATION. CUSTOMER OR, AS APPLICABLE, AN END USER ISRESPONSIBLE FOR INSTALLING, PROGRAMMING, CONFIGURING, AND LOADING THE EQUIPMENTAND ACTIVATING THE SYSTEM IN ACCORDANCE WITH THE INSTRUCTIONS PHARMRIGHTPROVIDES. IT IS CUSTOMER’S AND EACH END USER’S RESPONSIBILITY TO OBTAIN ANDKEEP IN EFFECT ALL CONSENTS, AUTHORIZATIONS, PERMITS OR LICENSES THAT MAY BEREQUIRED FOR THE INSTALLATION AND OPERATION OF THE SYSTEM IN CUSTOMER’S OR ENDUSER’S PREMISES.
3.2 ELECTRICAL POWER. IN ORDER TO USE THE SYSTEM, THE EQUIPMENTUSES ELECTRICAL POWER PROVIDED BY INDEPENDENT ELECTRIC COMPANIES, SUPPLEMENTEDBY BACK-UP BATTERY POWER. THE ELECTRIC POWER PROVIDED BY THE INDEPENDENTPROVIDERS MAY HAVE OUTAGES FROM TIME TO TIME, AND DURING ANY SUCH OUTAGE OURSYSTEM WILL BE UNABLE TO OPERATE AFTER BACKUP BATTERY POWER IS EXHAUSTED. IFTHERE IS AN ELECTRICAL POWER OUTAGE, AFTER BACKUP BATTERY POWER IS EXHAUSTEDTHE EQUIPMENT WILL CEASE TO OPERATE DURING THE OUTAGE, PREVENTING ANYCOMMUNICATION, COLLECTION OF DATA OR USE OF THE SYSTEM. NEITHER PHARMRIGHT NORANY OF ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVERFOR ANY RESULTING FAILURE OR DAMAGE DUE TO SUCH POWER OUTAGE.
3.3 THIRD PARTY CARRIERS. THE EQUIPMENT COMMUNICATES VIA CELLULARDATA SERVICE PROVIDED BY AN INDEPENDENT CARRIER. THE CELLULAR DATA SERVICEPROVIDED BY THE INDEPENDENT CARRIER MAY FAIL OR GO OFF-LINE FROM TIME TO TIME,AND DURING ANY SUCH OUTAGE OUR SYSTEM WILL BE UNABLE TO TRANSMIT AND RECEIVEINFORMATION. PHARMRIGHT MAY NOT RECEIVE TIMELY NOTICE OF THE COMMUNICATIONSOUTAGE FROM THE INDEPENDENT CARRIER. PHARMRIGHT IS NOT OBLIGATED TO PROVIDESERVICES DURING ANY SUCH OUTAGES. CELLULAR NETWORKS ARE REGULATED BY FEDERALAND STATE AGENCIES AND CHANGES IN RULES AND REGULATIONS MAY REQUIRE PHARMRIGHTTO MODIFY OR TERMINATE OUR SERVICES. NEITHER PHARMRIGHT NOR ANY OF ITSAFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANYRESULTING FAILURE OR DAMAGE DUE TO SUCH CELLULAR NETWORK OUTAGE.
3.4 Customer is responsible for all costs of operating theEquipment, maintenance or repairs not covered by the terms of Section 9 herein.
3.5 Customer is responsible for (and shall be deemed to have possessionand control of) all of the Equipment from the time it is delivered to Customeror its End Users. All Equipment subject to lease agreements shall be kept byCustomer subject to inspection by PharmRight, free of all security interests,liens, and other claims (other than such interest, liens or claims ofPharmRight), in good and efficient working order, condition and repair.
3.6 Customer is responsible for any and all loss or damage to theEquipment while the Equipment is in its (or its End User’s) possession orcontrol. Customer and each End User shall have no interest in leased Equipmentexcept the right to use and maintain possession during the term of lease.
4. Activation, Payment, and Renewal
4.1 Installation. The Services will not begin and PharmRight willhave no obligation to process information received from the System untilPharmRight has received and processed (a) an executed copy of this Agreement,(b) a completed Order and (c) Customer’s initial payment or deposit, ifrequired.
4.2 Lease and Connectivity Fees. Our Equipment and Services areoffered for purchase or on a lease basis. Customer agrees to pay lease amountson a quarterly basis until the lease is terminated and the Equipment isreturned to PharmRight or until the Equipment is purchased by Customer. Connectivity fees are paid on a monthly basis for purchased Equipmentafter the initial connectivity period has expired.
4.3 Automatic Payment. Customer authorizes and agrees that allamounts due to PharmRight under this Agreement, including any deposit, asapplicable and all lease or connectivity fees, are to be paid by automaticcredit card charge or ACH bank draft pursuant to the information Customerprovided with Customer’s Order. If Customer’s chosen payment method is not honored,PharmRight may: (a) demand payment by alternate method and Customer agrees topay the amount due; and/or (b) elect to terminate this Agreement by givingCustomer notice. Such termination does not relieve Customer of Customer’sobligation to pay for Services provided prior to such termination.
4.4 Automatic Renewal. For leased Equipment, after the originalterm described in Customer’s Order, the Services will automatically renew on aquarterly basis unless terminated by Customer or PharmRight. For purchasedEquipment, monthly connection fees will be charged after expiration of initialconnectivity period unless terminated by Customer or PharmRight.
4.5 Taxes; Third Party Costs. Customer agrees to pay all sales,service, property, use, value-added or other local taxes applicable to the useof the Equipment and Services by Customer or any End User. If Customer or anyEnd User incurs any third party costs in connection with Customer’s use ofPharmRight’s Services (such as utility bills), Customer agrees that Customerwill pay such costs and PharmRight is not responsible for payment of thoseamounts, whether imposed on Customer or us.
4.6 Section deleted.
4.7 Default. If Customer (i) fails to make any payment asscheduled or otherwise breaches the terms of this Agreement, (ii) becomesinsolvent or admits in writing its inability to pay its debts as they mature orany bankruptcy is instituted by or against Customer which remains for 60 daysundismissed or (iii) any warranty, representation, statement or report made inwriting by Customer in this Agreement or in any document or certificatefurnished in connection with this Agreement or any financing obtained inconnection with this Agreement proves to have been untrue or incorrect in anymaterial respect, PharmRight shall be ENTITLED TO ANY AND ALL AVAILABLE LEGALAND EQUITABLE REMEDIES. Customer will reimburse PharmRight for all costsincurred to enforce this Agreement including reimbursement for PharmRight’sreasonable attorney’s fees and expenses. If Customer defaults under thisAgreement including, without limitation, not making timely payment of anypayments due hereunder, in addition to all other remedies available toPharmRight under this Agreement, PharmRight shall also be entitled to demand andreceive as liquidated damages for loss of bargain and not as a penalty anamount equal to all accrued and unpaid payments plus the present value of thelease or connectivity payments which would otherwise have accrued from the dateof Customer’s default to the end of the Term. Such present value shall becomputed utilizing a rate of 2.00% per annum. Such liquidated damages shall bepaid whether or not this Agreement is terminated.
5. Cancellation; Termination
5.1 Cancellation. Subject to compliance with the remainder of thisSection 5, Customer may cancel its lease or connectivity) by giving PharmRightwritten notice.
5.2 Termination. After expiration of the initial lease period,Customer’s lease will automatically renew and continue on a quarterly basis,unless terminated in accordance with this Section. Customer may terminateCustomer’s lease at any time by giving PharmRight written notice throughCustomer’s PharmRight account or by contacting PharmRight customer service.PharmRight will continue to provide Services, and Customer will continue to beobligated to pay, through the end of the then current period. PharmRight mayterminate Customer’s Service at any time by giving Customer at least thirty(30) days advance written notice.
5.3 Suspension or Discontinuation of Services. PharmRight reservesthe right to discontinue Services and/or terminate or suspend this Agreementimmediately without notice if Customer fails to pay amounts when due,Customer’s payment method is denied or Customer or any End User breaches thisAgreement. In addition, and without limiting the foregoing, Customerunderstands that PharmRight may stop or suspend Services for any of thefollowing reasons: (a) strikes, severe weather, earthquakes or other suchevents beyond PharmRight’s control affect the operation of the System, (b)there is an interruption or unavailability of the service connecting theSystem, or if the underlying carrier suspends or discontinues service, (c)PharmRight is unable to provide Service because of some action or ruling by anycellular carrier, governmental authority or other third party, and (d) for anyother reason as determined in good faith by us. In no event will PharmRight beliable for any damages or subject to any penalty as a result of PharmRight exercisingthe right to suspend or terminate of this Agreement. Customer’s lease orconnectivity shall not survive the expiration or termination of this Agreement,but all disclaimers of warranties, limitations of responsibility and liability,exclusions of damages and other remedies, and indemnification rights set forthin this Agreement shall survive its expiration or termination.
5.4 Return of Equipment. In the event of any cancellation,termination or discontinuation of Services, PharmRight will request thatCustomer or the applicable End User return leased Equipment to PharmRight or toPharmRight’s designee. In such event, PharmRight will provide instructions toCustomer, and Customer agrees promptly to return such Equipment using theoriginal packaging in accordance with PharmRight’s instructions. If Customer oran applicable End User fails to return leased Equipment in accordance with thisparagraph, Customer agrees that PharmRight may charge, and Customer will pay,an amount equal to $1,000 as reasonable compensation for the value of theEquipment, and not as a penalty. It shall be Customer’s responsibility toreturn all of the Equipment in the same condition as when it was received -normal wear and tear excepted. Other than as provided herein, Customer shall besolely responsible for all costs of de-installing, packing and shipping theEquipment to PharmRight.
6. Customer's PharmRight Account
6.1 Account Access. PharmRight will provide Customer theopportunity to create a password-protected online account at PharmRight’s Site,through which Customer can manage Customer’s account and change or cancelaccess to Customer’s Equipment. Customer is responsible for maintaining theconfidentiality of Customer’s user login, password and user codes, and Customeris responsible for all uses of Customer’s login, password and user codes, andany related changes, whether or not authorized by Customer. Customer is alsoresponsible for keeping all contact information (including billing information,email addresses and telephone numbers) current and accurate.
6.2 Responsibility for End Users. If Customer purchases or leasesEquipment and Services or provides the Equipment for use by another person(such as a parent, loved one, client, or customer), that person is consideredan “End User” of the System under this Agreement. All End Users of the Systemare third party beneficiaries to this Agreement and are bound by all of theterms herein, including, without limitation, PharmRight’s disclaimer ofwarranties and limitation of liability. Customer agrees that, whenever thisAgreement or PharmRight’s rules or regulations impose any requirement orprohibition on the End User, Customer will cause all Customer’s End Users tocomply with such requirement or prohibition and will be responsible for anynoncompliance by any such End User. The System is not designed for, norintended to be used without the knowledge and consent of any End User. Customermust notify each End User and all other persons who may use the System that theyare bound by the terms and conditions of this Agreement and Customer must alsoinstruct each End User (if Customer is not the sole End User) on the proper useof the System. Customer or any applicable End User will use the System only inaccordance with this Agreement.
6.3 Customer’s Account Information. Customer must provide completeand accurate registration and account information when Customer establishesCustomer’s PharmRight account and when Customer orders any Services orEquipment. Customer must update this information through Customer’s PharmRightaccount or by calling customer service if there are any changes to thisinformation. Customer agrees that PharmRight may disclose Customer’s accountinformation to meet the requirements of any governmental agency, independentcarrier, or other third party to the extent necessary for the use and operationof the System and for legal and regulatory compliance purposes.
7. License Restrictions
7.1 License Grant. Subject to the terms and conditions of theAgreement, PharmRight grants to Customer and its End Users a limited,revocable, non-exclusive license to access and use the Equipment (leasecustomers only) and the Services during the Term, pursuant to the Terms ofService and solely for Customer’s use (and its End Users’ use) as an automatedmedication management system. The Equipment and Services are proprietary toPharmRight, subject to PharmRight’s suppliers’ and licensors’ rights, andPharmRight reserves all right, title and interest in and to the Equipment (forlease customers) and Services, including all related software and intellectualproperty rights. No rights are granted to Customer (or any End User) hereunderother than the limited license and access rights expressly set forth herein.
7.2 Restrictions. Except as expressly permitted herein, Customershall not, and shall not permit any End User or third party to: (i) license,sublicense, sell, resell, rent, lease, transfer, assign, distribute, time shareor otherwise exploit or make the Equipment or Services available to any thirdparty; (ii) translate, adapt, modify, copy, update, revise, enhance, orotherwise alter or create derivative works of the Services; (iii) reverseengineer, disassemble or decompile (or attempt to reverse engineer, disassembleor decompile) any Services or Equipment; (iv) access the Services in order to(1) build a competitive product or service, or (2) copy any ideas, features,functions or graphics thereof; (v) send or store viruses, worms, time bombs,Trojan horses and other harmful or malicious code, files, scripts, agents orprograms; (vi) interfere with or disrupt the integrity or performance of theServices; (vii) attempt to gain unauthorized access to the Services or itsrelated systems or networks; (viii) use the Services for unlawful purposes orfor any purpose not expressly permitted by the Agreement; (ix) use anyEquipment apart from the Services; or (x) make the Services or Equipmentavailable to any third party other than End Users. If PharmRight has reasonablegrounds to believe that Customer is in violation of this Section 7.2,PharmRight may suspend or terminate Customer’s and/or its End Users’ access tothe Equipment or Services immediately.
8. Ownership of Information Submitted Via Services
8.1 Data Submissions. By using the System and/or providing orsubmitting any data or content through the System (a “Submission”), Customerhereby grants to PharmRight and its affiliates, subsidiaries, licensees andassigns, an irrevocable, perpetual and royalty-free right to use, reproduce,edit, display, transmit, prepare derivative works of, modify, publish andotherwise make use of the Submission throughout the world and for any purposerelated to the business of PharmRight; provided, that, except with respect to purposesrelated to Customer’s use of the System, or for communications with Customer’shealthcare provider (if approved by Customer in writing), any such use shall beon a de-identified, anonymous basis. By uploading, inputting, providing orsubmitting Customer’s Submission, Customer warrants and represents thatCustomer owns or otherwise controls all of the rights to Customer’s Submissionas described in this section including, without limitation, all the rightsnecessary for Customer to provide, post, upload, input or submit theSubmission. The rights granted to PharmRight include but are not limited to theright to aggregate, summarize, analyze, resize, crop, censor, compress, edit,feature, caption, and to otherwise alter or make use of Customer’s Submission
8.2 Derived and Aggregated Data. Subject to PharmRight’s PrivacyPolicy, the terms of Section 7.1, and limits under applicable law with regardto identifiable information, Customer understands and intends that PharmRightis the full owner of all right, title, and interest in any content, data, orinformation extracted, derived, aggregated, or otherwise created from suchSubmission, and Customer agrees to hold PharmRight and its affiliates,subsidiaries, licensees, sponsors and assigns harmless from and against, andhereby waives any right to pursue, any claims of any nature arising inconnection with the use of any Submission in any manner authorized under theseTerms. Customer further hereby agrees that any Submission by Customer will beaccurate and will not be intended to mislead, harm or cause damage toPharmRight, any End User, or any other party, and Customer agrees to indemnify,defend and hold harmless PharmRight against any and all claims, liabilities anddamages caused by any Submission from Customer or any third party.
9. Equipment Maintenance; Disclaimer of Warranties
9.1 Maintenance. If, during the term of Customer’s lease, theEquipment provided to Customer fails to operate in accordance with theDocumentation, PharmRight will provide service and maintenance in accordancewith the term and conditions under this Agreement. For PurchasedEquipment, limited warranty applies to Equipment during the initial period ofconnectivity.
9.2 Limitations; Exclusions. PLEASE NOTE THAT REPAIR OR REPLACEMENTOF DEFECTIVE EQUIPMENT OR COMPONENT PARTS THEREOF IS PHARMRIGHT’S SOLEOBLIGATION, AND CUSTOMER’S AND ITS END USERS’ SOLE AND EXCLUSIVE REMEDY FORFAILURE OF THE EQUIPMENT OR SYSTEM TO OPERATE IN ACCORDANCE WITH THEDOCUMENTATION. PHARMRIGHT MAKES NO EXPRESS WARRANTY INCLUDING ANY WARRANTY OFMERCHANTABILITY OF THE SERVICE OR SYSTEM OR THEIR FITNESS FOR ANY SPECIALPURPOSE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE ANDSYSTEM ARE PROVIDED “AS IS,” WITH ALL FAULTS, AND PHARMRIGHT MAKES NOREPRESENTATION OR WARRANTY THAT THE SERVICE OR SYSTEM WILL BE FREE FROMDEFECTS, THAT THEY WILL MEET ANY CUSTOMER’S OR END USER’S NEEDS, OR THAT THESERVICE WILL BE UNINTERRUPTED OR ERROR FREE. THE MAINTENANCE PROVIDED IN THISSECTION DOES NOT INCLUDE BATTERIES OR ANY PART THAT NEEDS TO BE REPLACED DUE TOACCIDENT, ABUSE, MISUSE, ACTS OF GOD, VANDALISM, MODIFICATIONS, ATTEMPTEDUNAUTHORIZED REPAIRS, FAULTY ELECTRICAL, TELEPHONE, OR NETWORK CONNECTIONS. BYENTERING INTO THIS AGREEMENT AND USING OUR SYSTEM, CUSTOMER ACKNOWLEDGES THATPHARMRIGHT DOES NOT REPRESENT OR WARRANT THAT THE EQUIPMENT OR SYSTEM WILLPREVENT DEATH, BODILY OR PERSONAL INJURY, OR ANY OTHER INJURY OR DAMAGE TOCUSTOMER, AN END USER, OR OTHERS WHO USE OUR SERVICES OR EQUIPMENT. ALL IMPLIEDWARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESSFOR ANY SPECIAL PURPOSE, OR NON-INFRINGEMENT ARE DISCLAIMED TO THE MAXIMUMEXTENT PERMITTED BY APPLICABLE LAW. SOME STATES DO NOT ALLOW A LIMITATION OREXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOTAPPLY TO CUSTOMER.
10. Limitations on Liability
10.1 No Indirect Damages. UNDER NO CIRCUMSTANCES SHALL PHARMRIGHTOR PHARMRIGHT’S OFFICERS, DIRECTORS, SHAREHOLDERS, VENDORS, CONTRACTORS,EMPLOYEES, ASSIGNS, SUBSIDIARIES OR AFFILIATES (COLLECTIVELY THE “PHARMRIGHTPARTIES”) BE LIABLE TO CUSTOMER, ANY END USER, OR ANY THIRD PARTY, WHETHER INCONTRACT, TORT OR OTHERWISE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIALOR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOTEITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROMANY ASPECT OF THE RELATIONSHIP PROVIDED FOR HEREIN. EXCEPT AS PROVIDED INSECTION 9.1, TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENTWILL ANY OF THE PHARMRIGHT PARTIES BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTYIN WARRANTY, CONTRACT, NEGLIGENCE, STRICT TORT OR OTHERWISE, REGARDING ANYDEFECTS IN THE DESIGN, DEVELOPMENT, PRODUCTION, OR PERFORMANCE OF THE SYSTEM. CUSTOMEREXPRESSLY AGREES AND ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS OF LIABILITYFORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY EVENIF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS DEEMED UNCONSCIONABLE.NOTE: SOME STATES DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF CONSEQUENTIALOR INCIDENTAL DAMAGES, OR SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLYTO CUSTOMER.
10.2 Acknowledgement. Customer understands that: (a) PharmRight isnot an insurer of the health or personal safety of any End User; (b) the amountCustomer pays to PharmRight is based only on the value of the System PharmRightprovides; (c) notification systems may not always operate properly for variousreasons; and (d) it is difficult to determine in advance what portion, if any,of any personal injury or death or property loss would be proximately caused byPharmRight’s failure to perform, any PharmRight Party’s negligence, or afailure of the System or Services. Therefore, Customer agrees that even if acourt decides that PharmRight’s breach of this Agreement, a failure of theSystem, or any PharmRight Party’s negligence caused or allowed any harm ordamage (whether personal injury, death or property loss) to Customer, an EndUser or anyone in or about the premises where the System is installed, Customeragrees that the total liability of the PharmRight Parties shall be limited tothe greater of (i) $1,000 and (ii) the amount paid by Customer for the Servicesduring the preceding six (6) months. Customer further agrees that this shall bethe only remedy regardless of what legal theory (including without limitation,negligence, breach of contract, breach of warranty or product liability) isused to determine that PharmRight (or any of the foregoing parties) were liablefor the injury or loss. CUSTOMER ACKNOWLEDGES AND AGREES THAT IF PHARMRIGHTWERE TO HAVE ANY LIABILITY GREATER THAN THE AMOUNTS DESCRIBED IN THISAGREEMENT, PHARMRIGHT’S RISK OF LIABILITY WOULD BE TOO GREAT AND PHARMRIGHTCOULD NOT PROVIDE PHARMRIGHT’S SERVICES TO CUSTOMER. CUSTOMER ALSOACKNOWLEDGES AND AGREES THAT CUSTOMER HAS SELECTED THE EQUIPMENT AND SERVICESWITH A FULL UNDERSTANDING OF THE LIMITATION OF PHARMRIGHT’S LIABILITY IN THISAGREEMENT. No action arising out of this Agreement, regardless of form, may bebrought by Customer or on Customer’s behalf more than one year after the datethe cause of action has accrued.
Customer agrees to defend, indemnify, and hold harmlessPharmRight, its affiliates, its contractors, and all of their respectivedirectors, officers, employees, representatives, proprietors, partners,shareholders, servants, principals, agents, predecessors, successors, assigns,accountants, and attorneys from and against any and all suits, actions, claims,proceedings, damages, settlements, judgments, injuries, liabilities,obligations, losses, risks, costs, and expenses (including, without limitation,attorneys’ fees and litigation expenses) relating to or arising from the System,Customer’s use or an End User’s use of the System, or any misuse of theEquipment, fraud, violation of law, willful misconduct by Customer or any EndUser, or any breach by Customer or any End User of this Agreement.
13. Underlying Carrier Terms
CUSTOMER AND EACH END USER UNDERSTAND AND AGREE THAT CUSTOMER ANDEACH END USER HAVE NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESSSERVICE CARRIER PROVIDING COMMUNICATIONS SERVICE TO THE EQUIPMENT AND SYSTEM“UNDERLYING CARRIER”) AND CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANYAGREEMENT BETWEEN PHARMRIGHT AND UNDERLYING CARRIER. CUSTOMER AND EACH END USERUNDERSTAND AND AGREE THAT THE UNDERLYING CARRIER HAS NO LEGAL, EQUITABLE, OROTHER LIABILITY OF ANY KIND TO CUSTOMER. IN ANY EVENT, REGARDLESS OF THE FORMOF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICTLIABILITY IN TORT OR OTHERWISE, CUSTOMER AND EACH END USER’S EXCLUSIVE REMEDYFOR CLAIMS ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY CAUSEWHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF SERVICEPROVIDED HEREUNDER, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEEDTHE AMOUNT PAID BY OR ON BEHALF OF CUSTOMER FOR THE SERVICES DURING THE TWOMONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
CUSTOMER AND EACH END USER AGREE TO INDEMNIFY AND HOLD HARMLESSTHE UNDERLYING WIRELESS SERVICE CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTSAGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL,SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY,DIRECTLY OR INDIRECTLY, IN CONNECTION WITH THIS AGREEMENT OR THE USE, FAILURETO USE, OR INABILITY TO USE THE EQUIPMENT EXCEPT WHERE THE CLAIMS RESULT FROMTHE UNDERLYING CARRIER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITYWILL SURVIVE THE TERMINATION OF THE AGREEMENT.
CUSTOMER AND EACH END USER HAVE NO PROPERTY RIGHT IN ANY TELEPHONENUMBER ASSIGNED TO THE EQUIPMENT AND UNDERSTAND THAT ANY SUCH NUMBER CAN BECHANGED FROM TIME TO TIME. CUSTOMER AND EACH END USER UNDERSTAND THATPHARMRIGHT AND THE UNDERLYING CARRIER CANNOT GUARANTY THE SECURITY OF WIRELESSTRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THEUSE OF THE SERVICES. THE SERVICE IS FOR CUSTOMER USE AND USE BY END USERS ONLYAND CUSTOMER MAY NOT RESELL THE SERVICE TO ANY OTHER PARTY.
CUSTOMER AND EACH END USER UNDERSTAND THAT THE UNDERLYING CARRIERDOES NOT GUARANTEE ANY UNINTERRUPTED SERVICE OR UBIQUITOUS COVERAGE. CUSTOMERAND EACH END USER ACKNOWLEGE THAT SERVICE IS SUBJECT TO RISKS INCLUDING BUT NOTLIMITED TO, LACK OF COVERAGE, DISRUPTION, BREAKDOWN, DATA LOSS, HARM TO DATAINTEGRITY, DELAYED TRANSMISSION, LATENCY AND OTHER PERFORMANCE LIMITATIONS (THE“SERVICE LIMITATIONS”). THE UNDERLYING CARRIER DOES NOT WARRANT THAT END USERSCAN OR WILL BE LOCATED IN AN AREA WHICH PERMITS USING THE SERVICE.
THE UNDERLYING CARRIER MAKES NO WARRANTY, EXPRESS OR IMPLIED, OFMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, ORPERFORMANCE REGARDING ANY SERVICES OR GOODS, AND IN NO EVENT SHALL THEUNDERLYING CARRIER BE LIABLE, WHETHER OR NOT DUE TO ITS OWN NEGLIGENCE, FORANY: (A) ACT OR OMISSION OF A THIRD PARTY INCLUDING, BUT NOT LIMITED TO,INTENTIONAL OR NEGLIGENT ACTS OF THIRD PARTIES THAT DAMAGE OR IMPAIR THENETWORK OR DISRUPT SERVICE; (B) MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS,FAILURES TO TRANSMIT, DELAYS, OR DEFECTS IN THE SERVICE PROVIDED BY OR THROUGHTHE UNDERLYING CARRIER; (C) DAMAGE OR INJURY CAUSED BY SUSPENSION ORTERMINATION BY THE UNDERLYING CARRIER; OR (D) DAMAGE OR INJURY CAUSED BY A FAILUREOR DELAY IN CONNECTING A CALL TO ANY ENTITY, INCLUDING 911 OR ANY OTHEREMERGENCY SERVICE. TO THE FULL EXTENT ALLOWED BY LAW, CUSTOMER AND EACH ENDUSER RELEASES, INDEMNIFIES AND HOLDS THE UNDERLYING CARRIER HARMLESS FROM ANDAGAINST ANY AND ALL CLAIMS OF ANY PERSON OR ENTITY FOR DAMAGES OF ANY NATUREARISING IN ANY WAY FROM OR RELATING TO, DIRECTLY OR INDIRECTLY, SERVICESPROVIDED BY THE UNDERLYING CARRIER OR ANY PERSON’S USE THEREOF, INCLUDINGCLAIMS ARISING IN WHOLE OR IN PART FROM THE ALLEGED NEGLIGENCE OF THEUNDERLYING CARRIER.
14.1 Severability. If a court of competent jurisdiction finds anyprovision of this Agreement unlawful or unenforceable, that provision will beenforced to the maximum extent permissible so as to effect the intent of theparties, and the remainder of this Agreement will continue in full force andeffect. Customer and PharmRight intend that all restrictions on use,disclaimers of warranties, limitations of responsibility and liability,exclusions of damages or other remedies, and indemnification rights ofPharmRight in this Agreement shall be upheld and applied to the maximum extentpermitted by law.
14.2 Entire Agreement. This Agreement (including Orders thatreference this Agreement) constitutes the entire agreement between Customer andPharmRight. By entering into this Agreement, Customer affirms that Customer isnot relying on any other advice, advertisements, or any other representation,promise, condition, inducement, or warranty, express or implied, from anyperson that is not expressly and specifically set forth in writing in thisAgreement. In the event of a conflict between this Agreement and any othercommunication, request, agreement or order (including any order form notsupplied by PharmRight), the terms of this Agreement shall prevail.
14.3 Assignment. PharmRight reserves the right to assign thisAgreement, in whole or in part, or to subcontract any of PharmRight’sobligations hereunder without notifying Customer and without obtainingCustomer’s consent. By way of example, and not limitation, Customer agrees thatPharmRight may assign PharmRight’s rights to receive lease or connectivitypayments under this Agreement to a third party. In the event of suchassignment, Customer agrees to accept communication from such third party andto make payment to such third party to the full extent as Customer would beobligated to make payment to PharmRight hereunder. Customer may not assign thisAgreement, in whole or in part, to someone else (including someone whopurchases or rents Customer’s premises) unless PharmRight approves the transferin writing.
14.4.1 DISPUTES RELATING TO OR ARISING UNDER THIS AGREEMENT SHALLBE SUBMITTED TO BINDING ARBITRATION PURSUANT TO THE PROCEDURE DESCRIBED HEREINBELOW. ARBITRATION SHALL OCCUR IN CHARLESTON, SOUTH CAROLINA IN ACCORDANCE WITHTHE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ARBITRATION MAY BE INITIATED BY WRITTEN NOTICE FROM ANY PARTY TO THEOTHER OF THE INTENT TO INVOKE ARBITRATION (THE “ARBITRATION NOTICE”), WHICHSHALL BE A COMPULSORY AND BINDING PROCEEDING ON THE PARTIES THERETO. THEPARTIES MUST MAKE A GOOD FAITH EFFORT TO AGREE UPON THE SELECTION OF A SINGLENEUTRAL AND IMPARTIAL ARBITRATOR TO RESOLVE THE DISPUTE. IF THE PARTIES DO NOTAGREE UPON A SINGLE ARBITRATOR WITHIN FIVE (5) BUSINESS DAYS AFTER THE DATE THEARBITRATION NOTICE IS DELIVERED, EACH PARTY SHALL CHOOSE A NEUTRAL ANDIMPARTIAL ARBITRATOR WITHIN TEN (10) BUSINESS DAYS AFTER THE DATE THE ARBITRATIONNOTICE IS DELIVERED. THE ARBITRATORS SO CHOSEN SHALL THEN CHOOSE AN ADDITIONALARBITRATOR WITHIN FIFTEEN (15) BUSINESS DAYS AFTER THE DATE THE ARBITRATIONNOTICE IS DELIVERED. THE ADDITIONAL ARBITRATOR SHALL BE THE CHAIRPERSON OF THEARBITRATION PANEL. THEREAFTER, THE ARBITRATORS (THE “ARBITRATION PANEL”) SHALLCONSULT AND CONDUCT A HEARING. IF THE ARBITRATION PANEL DOES NOT REACH AUNANIMOUS DECISION, THE CHAIRPERSON SHALL RENDER THE DECISION ALONE.
14.4.2 TIME IS OF THE ESSENCE WITH RESPECT TO SUCH ARBITRATION,AND THE ARBITRATOR(S) SHALL BE INSTRUCTED TO BEGIN THE PROCEEDING, CONDUCT THEPROCEEDING AND RENDER A DECISION AS EXPEDITIOUSLY AS PRACTICABLE. A DECISIONCONCERNING A FUNDAMENTAL DECISION DEADLOCK SHALL BE RENDERED WITHIN THIRTY (30)DAYS FOLLOWING FINAL SELECTION OF THE ARBITRATOR OR ARBITRATION PANEL. ADECISION OF THE ARBITRATOR(S) SHALL BE FINAL AND BINDING UPON THE PARTIES, ANDJUDGMENT MAY BE OBTAINED THEREON BY ANY PARTY BY A COURT OF COMPETENTJURISDICTION. EACH PARTY SHALL BEAR THE COST OF PREPARING AND PRESENTING ITSRESPECTIVE CASE. THE COST OF THE ARBITRATION, INCLUDING THE FEES ANDEXPENSES OF THE ARBITRATOR(S), SHALL BE SHARED EQUALLY BY THE PARTIES UNLESSTHE AWARD PROVIDES OTHERWISE. IT IS HEREBY AGREED THAT ANY ARBITRATOR SELECTEDUNDER THIS PARAGRAPH SHALL HAVE QUALIFICATIONS WHICH SHALL INCLUDE EXPERIENCEAND TECHNICAL COMPETENCE RELEVANT TO THE SUBJECT MATTER OF THIS AGREEMENT.
14.5 Waiver of a Right to Jury Trial. Customer (and each End User)hereby irrevocably waives any and all right to trial by jury in any legalproceeding arising out of or related to this Agreement or the transactionscontemplated hereby or thereby.
14.6 Governing Law and Venue. The validity, interpretation, andperformance of this Agreement shall be controlled by and construed under thelaws of the State of South Carolina, as if performed wholly within the stateand without giving effect to the principles of conflicts of laws. Theapplication of the United Nations Convention of Contracts for the InternationalSale of Goods is expressly excluded. Any dispute between the parties regardingthis Agreement will be subject to the exclusive venue and applicable laws ofthe state and federal courts located in Charleston County, South Carolina.
14.7 Third Party Beneficary. Customer hereby agrees that each EndUser of the System is an intended third party beneficiary of this Agreement.All End Users shall be bound by the terms and conditions of this Agreement andPharmRight may enforce the terms and conditions of this Agreement that apply toEnd Users.
14.8 Notices. If Customer or PharmRight wish to give the otherparty written notices under this Agreement, they must be (a) in writing, (b) ifto Customer, sent to Customer’s email address on file with PharmRight (orposted in Customer’s PharmRight account if no email address is on file), (c) ifto us, sent by overnight courier, certified or registered mail, or otherreliable means (with confirmation of delivery) to PharmRight’s principal businessaddress listed on PharmRight’s Site. Notices will be effective upon delivery.
14.9 Amendments. PharmRight may modify this Agreement at any timeand from time to time in PharmRight’s sole discretion by providing to Customeran updated copy. If PharmRight modifies this Agreement in a way thatsubstantially changes any of Customer’s rights hereunder, PharmRight willnotify Customer by email at least thirty (30) days (or such longer period ifrequired by law) prior to any such changes taking effect. Notwithstanding theabove, Customer should periodically review this Agreement carefully in order tomake sure that Customer are aware of the most current terms and conditions forthe use of the System, because any use of the System by Customer after anychange to this Agreement, whether or not Customer have reviewed the amendedAgreement,