General Terms and Conditions
The following terms and conditions (the “Terms and Conditions”) are incorporated by reference into the Master Software License and Services Agreement (the “Agreement”) between you (“Client”) and Transaction Data Systems, Inc., and/or its subsidiaries and affiliates (“TDS”). Capitalized terms not defined herein shall have the meaning ascribed to such terms in the Agreement. For the sake of clarity, the term “Agreement” shall include these Terms and Conditions.
a. The Software includes the following: (i) object code in machine readable form; (ii) required licenses to any third-party software embedded in the Software; and (iii) all documentation and specifications for the Software.
b. Subject to the terms and conditions of the Agreement, the following rights and privileges are granted to Client under the License: (a) to use the Software at the Permitted Locations and (b) to make up to five (5) copies of the Software, or any part of the Software, for Client's in-house use. Client may not use the Software, or any copy, modification or merged portion thereof, in whole or in part, except as expressly provided in the Agreement.
c. Client may not sub-license, assign, or transfer the License or the Software, or any part thereof, except as expressly provided in this Agreement or with the written consent of TDS. Any attempt otherwise to sub- license, assign or transfer any of the rights, duties or obligations hereunder is void. If Client transfers possession of any copy, modification, or merged portion of the Software to another party, Client’s license hereunder is automatically terminated.
d. Client will not: (a) decompile, disassemble, or otherwise reverse engineer the Software; (b) attempt to derive the source code form of the Software; (c) intentionally remove or materially alter any trademark, copyright, product identification or other proprietary notices contained in the Software; or (d) create a derivative work of any part of the Software.
e. Client is required to subscribe to Support Services in order to maintain the License and to use the Software. The License shall automatically terminate, with no further action by TDS, in the event the Support Services are terminated (including termination by TDS for Client’s failure to timely pay for the Support Services).
a. New Hardware may be returned for a refund or replacement, provided that Client returns the Hardware to TDS forty-five (45) days of the original shipment date. All items returned must be in the original packaging and in “like new” condition, with all components and accessories that were shipped with the original purchase. No refunds or exchanges will be permitted after the forty-five (45) day window has expired.
b. Any Hardware that is returned must be sent back to the TDS location from which it was shipped (e.g., Ocoee, Florida, Moore, Oklahoma, etc.).
c. Unless the Hardware is defective, Client shall pay TDS a 20% restocking fee for any items sent back to TDS for a refund or
replacement (based on the original sales price of the returned items).
d. The following Hardware related fees are not refundable at any time: all shipping and handling charges, equipment set-up charges, and testing and software installation charges.
e. TDS shall, to the extent permissible, pass through to Client all available original equipment manufacturer warranties on the Hardware.
4. Support Services.
a. Updates to Software released for general use and covered under this Agreement (the “Updates”) will be provided to the Client at no additional charge during the Term of this Agreement. Client agrees to install all such provided Updates for use within five (5) business days of receipt. TDS agrees that it will support its most current Licensed Software releases and, if applicable, the immediately preceding release. TDS does not guarantee that it can or will support any older releases of its Licensed Software and reserves the right to discontinue all forms of support for discontinued products and/or older versions of Licensed Software.
b. The Support Services cover the Software licensed under the Agreement, for use on a system that meets the minimum equipment configuration for the licensed Software, as communicated to Client by TDS (the “Minimum Equipment Configuration”), and as updated with the Updates and any other improvements or modifications furnished to Client under this Agreement. In the event that Client installs the Software or any updated version of the Software on a system that does not meet the Minimum Equipment Configuration for such Software, Client agrees that TDS shall not have any responsibility for the performance of the Software on Client’s system.
c. Support Services do not cover support for software created by third parties nor do they cover equipment and/or peripheral devices attached to the computer or terminals operating the Software. Calls for support where the problem is determined to be a direct or indirect result or consequence of the Software being incorrectly installed, where such installation was not done directly by TDS personnel or not in accordance with TDS installation instructions, may result in non-covered support charges to Client at TDS’ then-current hourly support rates.
d. TDS may change the terms and conditions associated with the Support Services upon thirty (30) days written notice to Client; such written notice may be provided in generally distributed TDS literature such as a newsletter or as an amendment to the Agreement of these Terms and Conditions. TDS reserves the right to change the fees for Support Services at any time but no such change in fees shall be effective for Client prior to the end of a pre-paid coverage period and shall not be retroactive.
e. Client agrees to install and maintain for the duration of this Agreement a high‐speed internet connection acceptable to TDS. Client agrees that the internet connection will be reserved for use by the Software.
5. Confidential Information.
a. “Confidential Information” means any and all non-public technical and non-technical information provided by either party to the other, including but not limited to ideas, sketches, techniques, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales, merchandising, marketing plans and information the disclosing party provides regarding third parties. The Parties expressly acknowledge and agree that the transactions contemplated by the Agreement and the terms, conditions, and negotiations concerning the same, constitute Confidential Information.
b. Each party agrees: (i) not to use any Confidential Information of the other party for any purpose except in the performance of its obligations under this Agreement or as otherwise expressly permitted hereunder; (ii) to disclose such Confidential Information only to employees (or third party subcontractors permitted under this Agreement) who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than that set forth herein; (iii) to protect such Confidential Information from unauthorized use, access or disclosure in the same manner that it protects its own similar Confidential Information, but in no event with less care than a reasonably prudent business would exercise; and (iv) to promptly notify the other party of any actual or potential unauthorized access to or use of Confidential Information.
c. All Confidential Information shall remain the sole property of the disclosing party, and the receiving party shall have no interest in or rights with respect thereto except as expressly set forth in this Agreement.
d. The foregoing restrictions on disclosure shall not apply with respect to any information which: (i) was or becomes generally known or publicly available through no act or failure to act on the part of the receiving party; (ii) is known by the receiving party without restrictions on disclosure at the time of receiving such information as evidenced by its records; (iii) is rightfully furnished to the receiving party without restrictions on disclosure by a third party without a breach of such third party's obligations of confidentiality; or (iv) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure.
e. This subsection will survive any termination of the Agreement for a period of three (3) years. Notwithstanding the foregoing, with respect to trade secrets, the obligations of this subsection shall remain in effect for as long as such information shall remain a trade secret under applicable law.
6. Intellectual Property Rights.
All title and rights of ownership in the Software, including, without limitation, patents, trademarks, copyrights, service marks, trade names, trade secrets and all other intellectual property rights, belong to, and remain with, TDS. No such rights are transferred to Client under the Agreement, except for the License on the terms and conditions set forth herein.
7. Backup Services.
If Client elects to utilize the TDS Remote Backup Service or other similar data backup service offered by TDS (the “Backup Service”), the following additional terms shall apply with respect to the Backup Service:
a. The Backup Service, including transmission, storage, viewing and retrieval of data and files is subject to a variety of conditions that make such transmission, storage, viewing and retrieval potentially unreliable, and Client acknowledges that the quality and accuracy of Client's data backup services is dependent on the accuracy, quality, and reliability of Client's data. Accordingly, Client's use of the Backup Service is at Client’s sole risk. The Backup Service is provided to Client on an "as is" basis. TDS disclaims all warranties and conditions, express or implied, arising by law or otherwise, with respect to the Backup Service (including, without limitation, any implied warranties of merchantability, fitness for a particular purposes and noninfringement). TDS makes no representation or warranty that: (a) the Backup Service will meet Client's needs; (b) the Backup Service will be timely, error-free, uninterrupted, or virus-free; (c) Client's data and files will not be lost or damaged; or (d) the data on Client's desktop or server will not be lost or damaged. Client acknowledges that any material or data retrieved through the use of the Backup Service is done at Client's choice and risk and that Client will be solely responsible for any damage to its computer system or loss of data that results from the retrieval of such material or data.
b. In no event shall TDS have any obligation or liability to Client for the cost or procurement of substitute services or data or for any direct, indirect, incidental, special, exemplary or consequential damages (including, without limitation, any loss of data, revenue or profits or business interruption) or other pecuniary loss arising out of Client's use of the Backup Service or Client's loss of data or files stored therein.
Unless otherwise stated in the Agreement, or an exhibit or schedule thereto: (a) fees for Support Services are payable in advance of the applicable support period; (b) fees for any Hardware are due at the time Client orders such Hardware and must be paid prior to TDS shipping such Hardware to Client; and (c) fees for all Software and Other Services are due upon receipt of such Software or Other Services. All invoices shall be in U.S. dollars.
9. Invoice Dispute.
Client may only withhold payment on any invoiced amounts reasonably disputed in good faith under this Agreement. In the event of a disputed invoice, Client shall: (i) provide TDS notice of any disputed amounts, including a reasonable explanation to support the withholding of any disputed amounts; and (ii) timely pay all undisputed amounts on the invoice. Any dispute to an invoice must be brought to the attention of TDS within thirty (30) days of the date of such invoice, otherwise such invoice will be deemed accepted by Client.
10. Suspension of Services.
In the event that Client fails to timely pay an undisputed invoice, TDS may suspend Services and access to the Software until Client has timely paid all such undisputed invoices.
11. Benefit Programs.
Unless TDS is specifically instructed otherwise in writing, Client agrees to participate in available rebate, couponing, patient compliancy, and statistical aggregation programs for which Client is eligible (the “Benefit Programs”). TDS warrants that it will not collect any data for the Benefit Programs that, in its opinion, could be used in any manner to harm Client. Client understands and agrees that some programs of this category will be of an elective nature. For such elective programs, TDS will notify the Client of the availability of such program and the Client may elect not to participate in the program.
12. Enhanced Medication Services.
The Enhanced Medication Services program (“EMS”) capitalizes on TDS’s size and scale to contract with a variety of industry entities, on Client’s behalf, to deliver patient centered programs designed to drive adherence, STAR ratings, improved health outcomes, collaborative care and outstanding community pharmacy performance. EMS performs patient outreach to Client’s patient population to drive successful patient adherence, education and outcomes related to a variety of Medication Therapy Management functions. Unless TDS is specifically instructed otherwise in writing, Client agrees to participate in all applicable EMS programs. TDS warrants that it will only use specific patient clinical information for purposes specifically related to the programs being administered for Client. EMS programs sponsored by health insurance companies may require TDS to provide patient information related to the health insurance company’s beneficiaries to the health insurance company on behalf of Client for payment activities or health care operations. TDS may also provide patient information to business and sub-business associates of Client to perform data aggregation services necessary for EMS programs.
13. De-Identified Data.
TDS may use protected health information to create de-identified information (“De-Identified Information”) in accordance with the applicable provisions of 45 C.F.R. § 164.514, and may use and disclose such De-Identified Information: (1) for the purposes described in the Agreement; and (2) to fulfill any legal responsibilities of Client and/or TDS. TDS may also use and disclose such De-Identified Information for any purpose and in any manner consistent with applicable law and may disclose such De-Identified Information to a third party for such third party’s own use; provided, however, that: (1) TDS will not re-identify De-Identified Information and (2) TDS will take reasonable steps to ensure that its workforce, subcontractors and third parties that receive De-Identified Information do not re-identify De-Identified Information.
14. Termination for Material Breach.
TDS or Client may terminate the Agreement in its entirety upon written notice to the other in the event that the other party is in default of the performance of any material obligation imposed under this Agreement and the default has not been substantially cured to the satisfaction of the non-defaulting party within thirty (30) days following receipt by the defaulting party of written notice of default (each, an “Event of Default”). An Event of Default specifically includes, but it not limited to, a breach of Client’s obligations to pay for the Software or Services.
15. Termination for Insolvency.
Either Party may terminate the Agreement without notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party, or has a receiver or trustee appointed for substantially all of its property.
16. Effect of Termination.
The termination of this Agreement, whether for breach or otherwise, shall be without prejudice to any claims for damages or other rights against the other party that preceded termination. Any provision of this Agreement which can reasonably be construed to survive the expiration or termination of this Agreement shall survive such expiration or termination and shall not relieve either party of its obligations to observe, keep and perform those surviving provisions.
17. Client Data (Post-Termination).
In the event the License and/or this Agreement is terminated or any reason, TDS shall provide Client with electronic access to all prescription drug order files, including refill information and patient medication records.
18. Product Functionality.
TDS warrants that the Software possesses the functional capabilities described in the documentation for such Software and shall operate in accordance with such documentation in all material respects.
TDS warrants that the Software, including Client’s use of the Software, shall not unlawfully infringe upon the copyright, patent or other proprietary rights of others.
20. No Viruses.
TDS warrants that, to the best of TDS’s knowledge, the Software does not contain any viruses, key locks, back doors, trap doors, worms, trojan horses, timers or other disabling devices (collectively, “Non-Beneficial Code”). TDS further warrants that TDS and TDS personnel shall not insert any, or allow any other party to insert any, Non-Beneficial Code into the Software.
21. Compliance with Applicable Laws.
TDS warrants that it shall perform its obligations under this Agreement in a manner that complies with all applicable federal and state laws, rules, regulations and standards (collectively, “Applicable Laws”).
22. Third-Party Content.
TDS does not provide any warranty with respect to any third-party content included within the Software, including, without limitation, content related to drug utilization or other clinical content (the “Clinical Content”). The Clinical Content should not be considered complete and should not be used in place of consultation or advice from a physician, pharmacist, or other healthcare professionals. The Clinical Content is intended to supplement the knowledge of physicians, pharmacists, and other healthcare professionals regarding drug therapy problems and patient counseling information. This information is advisory only and is not intended to replace sound clinical judgment in the delivery of healthcare services. Further, the pricing information contained in the Software is merely an aid to Client regarding comparable pricing in the marketplace, and no warranty is made as to its completeness or accuracy, which could be further degraded in the event Client fails to ensure regular software updates via the Internet.
THE WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS CONSTITUTE THE ONLY WARRANTIES OF THE PARTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE IS LICENSED FOR USE "AS IS," AND WITH ALL FAULTS AND DEFECTS. TDS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PROGRAMS WILL MEET CLIENT'S REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE.
24. Limitation of liability.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR LOSS OF DATA), ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO CLAIMS RELATING TO SECTION 5 (CONFIDENTIAL INFORMATION) AND SECTION 6 (INTELLECTUAL PROPERTY RIGHTS), UNDER NO CIRCUMSTANCES WILL THE LIABILIY OF EITHER PARTY TO THE OTHER PARTY EXCEED, IN THE AGGREGATE, THE FEES ACTUALLY PAID BY CLIENT TO TDS UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEEDING ANY CLAIM.
25. Binding Agreement.
The parties hereto warrant and represent that upon execution hereof, the Agreement shall be a legal, valid and binding obligation on them and shall be enforceable against them in accordance with its terms. The Individuals signing the Agreement warrant and represent that they are duly authorized to sign the Agreement on behalf of the parties hereto.
The failure to comply with or to enforce any term, provision, or condition of the Agreement, whether by conduct or otherwise, shall not constitute or be deemed a waiver of any other provision hereof; nor shall such failure to comply with or to enforce any term, provision, or condition hereof constitute or be deemed a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
TDS may amend these Terms and Conditions from time to time and Client agrees to be bound by such amended terms, even if made after the Effective Date of the Agreement. A copy of such amended Terms and Conditions shall be made available to Client at www.tdsclinical.com/terms.
All notice, consents, waivers or other communications required or permitted to be given under the terms of the Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) one (1) business day after deposit with a reputable overnight courier service; or (iii) three (3) business days after the mailing of the notice by United States Postal Service certified or registered mail, return receipt requested, in each case properly addressed to the party to receive the same. The addresses for such communications shall be to the respective addresses of the parties as set forth in the Agreement, or at such other address as such parties shall have furnished in writing pursuant to this section.
Should any part, term, or provision of the Agreement be declared to be invalid, void, or unenforceable, all remaining parts, terms, and provisions hereof shall remain in full force and effect, and shall in no way be invalidated, impaired, or affected thereby.
Neither party may assign this Agreement without the prior written consent of the other party; provided, however, that either party may assign this Agreement to: (i) a parent, subsidiary or affiliate who agrees to be bound by the terms of this Agreement; and (ii) a successor-in-interest in the event of a merger (by operation of law or otherwise) or a sale of all or substantially all of a party’s assets.
31. Applicable Law and Venue.
This Agreement shall be governed by the laws of the State of Florida without regard to its conflict of laws provisions and the venue of any litigation arising from this Agreement shall be in the District Courts of Orange County, Florida. The venue of any dispute resolution activity shall be in Orlando, Orange County, Florida.
32. Subject Headings.
The subject headings of the sections, paragraphs, and subparagraphs of this Agreement are included herein solely for the purposes of convenience and reference, and shall not be deemed to explain, modify, limit, amplify, or aid in the meaning, construction, or interpretation of any of the provisions of this Agreement.
33. Attorney's Fees and Court Costs.
If either party brings an action against the other to enforce any condition or covenant of this Agreement, each party shall be individually responsible for its own court costs and attorney's fees.
34. Relationship of the Parties.
None of the provisions of this Agreement are intended to create, and none shall be deemed or construed to create, any relationship between the parties, other than that of independent contractors. This Agreement shall not create the relationship of employer-employee, agency, partnership, or joint venture. Neither party shall have the right or power in any manner to unilaterally obligate the other to any third party, whether or not related to the purpose of this Agreement.
35. Entire Agreement.
This Agreement contains the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed, and supersedes all prior written or oral agreements or communications between the parties.
36. Force Majeure.
Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting, directly or indirectly, from acts of God, civil or military authority, labor disputes, shortages of suitable parts, or any similar cause beyond the reasonable control of the parties.