LIVI TERMS OF SERVICE AGREEMENT
THIS TERMS OF SERVICE AGREEMENT IS A LEGALLY BINDING AGREEMENT between 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 be bound by this agreement to the same extent as if you and we had manually executed a paper copy of this agreement, and you understand that you are entering into a binding agreement electronically, and you intend to enter into this agreement electronically.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN PHARMRIGHT AND CUSTOMER, PHARMRIGHT MAY NOT CONTINUE TO CONDUCT BUSINESS, AND MAY NOT BE ABLE TO PROVIDE THE SYSTEM OR PERFORM ITS OTHER OBLIGATIONS HEREUNDER, FOR THE ENTIRE TERM SET FORTH IN CUSTOMER’S ORDER OR ANY PERIOD OF TIME BEYOND SUCH TERM.
These Terms and Conditions, the Terms of Service (as defined below), and any addenda attached hereto or referenced herein (each of which are hereby incorporated by this reference) (collectively, this “Agreement”), describe the relationship between PharmRight and the Customer identified on the Order (“Customer”). This Agreement will become effective as of the date executed by Customer (the “Effective Date”). Customer acknowledges and agrees that 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 of this Agreement and describe the rights, obligations, restrictions and liabilities of the parties with respect to the Equipment, Services, System, and Site. Capitalized terms used but not defined herein shall have the meanings set forth in the Order. Words that are capitalized have the specific meanings set forth in the “Definitions” section below.
1.1 “Documentation” means user guides, instructions, manuals or videos provided by or on behalf of PharmRight in connection with the provision and 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 which communicates via the Internet, cellular communications networks, or through other electronic means with the PharmRight servers, including any related or connected hardware and all software or firmware installed, embedded, or utilized therein.
1.4 “PharmRight” or “we” or “us” means PharmRight Corporation.
1.5 “Order” means an electronic or written order to purchase or lease the Equipment and use the Services pursuant to the terms set forth on the Order.
1.6 “Services” means the network communication, remote monitoring, optional notifications services, and customer support services provided by PharmRight under this Agreement and the proprietary PharmRight software used in connection with the Equipment and/or provided on a hosted or software-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 and use of the Equipment and Services between PharmRight, Customer and each End User. (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 with the Equipment in accordance with this Agreement and pursuant to the Terms of Service. In order to use or access certain features of the Equipment and Services, each End User may be required to provide a personal computer, smartphone, tablet, software, an Internet browser, and/ or access to the Internet.
2.2 Modifications of Service. The Services may include one or more of the following: (a) the enabling of wireless transmission of data between Equipment placed in the End User’s premises and a network operations center; (b) providing remote access to data collected by the Equipment via Customer’s PharmRight account; (c) providing email, SMS and other notifications to Customer regarding Equipment activity; (d) providing periodic email updates to End Users; and (e) providing automated updates to Equipment firmware. PharmRight reserves the right to modify, add or eliminate Services from time to time without prior notice.
2.3 LIMITATIONS. THE SYSTEM IS NOT FAIL-SAFE AND IS NOT DESIGNED OR INTENDED FOR USE IN SITUATIONS REQUIRING FAIL-SAFE PERFORMANCE OR ANY USE IN WHICH AN ERROR OR INTERRUPTION IN THE SYSTEM OR SERVICES COULD LEAD TO SEVERE INJURY TO BUSINESS, PERSONS, PROPERTY OR ENVIRONMENT. THE SYSTEM IS NOT INTENDED TO PROVIDE REAL-TIME DATA AND SHOULD NOT BE RELIED UPON FOR EMERGENCY INTERVENTION OR AS A SUBSTITUTE FOR MEDICAL CARE.
2.4 NOT INTENDED AS MEDICAL ADVICE OR A PHARMACY SYSTEM. THE SYSTEM IS NOT INTENDED FOR DIAGNOSIS OR AS A SUBSTITUTE FOR MEDICAL CARE, PHARMACY SERVICES, OR PATIENT MONITORING OR TO PROVIDE AUTOMATED TREATMENT DECISIONS AND SHOULD NOT BE USED AS A SUBSTITUTE FOR PROFESSIONAL HEALTHCARE JUDGMENT OR PHARMACY SERVICES.
2.5 Force Majeure. PharmRight will not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the System directly or indirectly caused by, or proximately resulting from, any circumstances beyond PharmRight’s reasonable control, including, but not limited to, causes attributable to Customer or Customer’s property; failure of any third party telecommunications network; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the System.
3.1 INSTALLATION. CUSTOMER OR, AS APPLICABLE, AN END USER IS RESPONSIBLE FOR INSTALLING, PROGRAMMING, CONFIGURING, AND LOADING THE EQUIPMENT AND ACTIVATING THE SYSTEM IN ACCORDANCE WITH THE INSTRUCTIONS PHARMRIGHT PROVIDES. IT IS CUSTOMER’S AND EACH END USER’S RESPONSIBILITY TO OBTAIN AND KEEP IN EFFECT ALL CONSENTS, AUTHORIZATIONS, PERMITS OR LICENSES THAT MAY BE REQUIRED FOR THE INSTALLATION AND OPERATION OF THE SYSTEM IN CUSTOMER’S OR END USER’S PREMISES.
3.2 ELECTRICAL POWER. IN ORDER TO USE THE SYSTEM, THE EQUIPMENT USES ELECTRICAL POWER PROVIDED BY INDEPENDENT ELECTRIC COMPANIES, SUPPLEMENTED BY BACK-UP BATTERY POWER. THE ELECTRIC POWER PROVIDED BY THE INDEPENDENT PROVIDERS MAY HAVE OUTAGES FROM TIME TO TIME, AND DURING ANY SUCH OUTAGE OUR SYSTEM WILL BE UNABLE TO OPERATE AFTER BACKUP BATTERY POWER IS EXHAUSTED. IF THERE IS AN ELECTRICAL POWER OUTAGE, AFTER BACKUP BATTERY POWER IS EXHAUSTED THE EQUIPMENT WILL CEASE TO OPERATE DURING THE OUTAGE, PREVENTING ANY COMMUNICATION, COLLECTION OF DATA OR USE OF THE SYSTEM. NEITHER PHARMRIGHT NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY RESULTING FAILURE OR DAMAGE DUE TO SUCH POWER OUTAGE.
3.3 THIRD PARTY CARRIERS. THE EQUIPMENT COMMUNICATES VIA CELLULAR DATA SERVICE PROVIDED BY AN INDEPENDENT CARRIER. THE CELLULAR DATA SERVICE PROVIDED 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 RECEIVE INFORMATION. PHARMRIGHT MAY NOT RECEIVE TIMELY NOTICE OF THE COMMUNICATIONS OUTAGE FROM THE INDEPENDENT CARRIER. PHARMRIGHT IS NOT OBLIGATED TO PROVIDE SERVICES DURING ANY SUCH OUTAGES. CELLULAR NETWORKS ARE REGULATED BY FEDERAL AND STATE AGENCIES AND CHANGES IN RULES AND REGULATIONS MAY REQUIRE PHARMRIGHT TO MODIFY OR TERMINATE OUR SERVICES. NEITHER PHARMRIGHT NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY RESULTING FAILURE OR DAMAGE DUE TO SUCH CELLULAR NETWORK OUTAGE.
3.4 Customer is responsible for all costs of operating the Equipment, maintenance or repairs not covered by the terms of Section 9 herein.
3.5 Customer is responsible for (and shall be deemed to have possession and control of) all of the Equipment from the time it is delivered to Customer or its End Users. All Equipment subject to lease agreements shall be kept by Customer subject to inspection by PharmRight, free of all security interests, liens, and other claims (other than such interest, liens or claims of PharmRight), in good and efficient working order, condition and repair.
3.6 Customer is responsible for any and all loss or damage to the Equipment while the Equipment is in its (or its End User’s) possession or control. Customer and each End User shall have no interest in leased Equipment except 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 will have no obligation to process information received from the System until PharmRight has received and processed (a) an executed copy of this Agreement, (b) a completed Order and (c) Customer’s initial payment or deposit, if required.
4.2 Lease and Connectivity Fees. Our Equipment and Services are offered for purchase or on a lease basis. Customer agrees to pay lease amounts on a quarterly basis until the lease is terminated and the Equipment is returned to PharmRight or until the Equipment is purchased by Customer. Connectivity fees are paid on a monthly basis for purchased Equipment after the initial connectivity period has expired.
4.3 Automatic Payment. Customer authorizes and agrees that all amounts due to PharmRight under this Agreement, including any deposit, as applicable and all lease or connectivity fees, are to be paid by automatic credit card charge or ACH bank draft pursuant to the information Customer provided with Customer’s Order. If Customer’s chosen payment method is not honored, PharmRight may: (a) demand payment by alternate method and Customer agrees to pay the amount due; and/or (b) elect to terminate this Agreement by giving Customer notice. Such termination does not relieve Customer of Customer’s obligation to pay for Services provided prior to such termination.
4.4 Automatic Renewal. For leased Equipment, after the original term described in Customer’s Order, the Services will automatically renew on a quarterly basis unless terminated by Customer or PharmRight. For purchased Equipment, monthly connection fees will be charged after expiration of initial connectivity 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 use of the Equipment and Services by Customer or any End User. If Customer or any End User incurs any third party costs in connection with Customer’s use of PharmRight’s Services (such as utility bills), Customer agrees that Customer will pay such costs and PharmRight is not responsible for payment of those amounts, whether imposed on Customer or us.
4.6 Section deleted.
4.7 Default. If Customer (i) fails to make any payment as scheduled or otherwise breaches the terms of this Agreement, (ii) becomes insolvent or admits in writing its inability to pay its debts as they mature or any bankruptcy is instituted by or against Customer which remains for 60 days undismissed or (iii) any warranty, representation, statement or report made in writing by Customer in this Agreement or in any document or certificate furnished in connection with this Agreement or any financing obtained in connection with this Agreement proves to have been untrue or incorrect in any material respect, PharmRight shall be ENTITLED TO ANY AND ALL AVAILABLE LEGAL AND EQUITABLE REMEDIES. Customer will reimburse PharmRight for all costs incurred to enforce this Agreement including reimbursement for PharmRight’s reasonable attorney’s fees and expenses. If Customer defaults under this Agreement including, without limitation, not making timely payment of any payments due hereunder, in addition to all other remedies available to PharmRight under this Agreement, PharmRight shall also be entitled to demand and receive as liquidated damages for loss of bargain and not as a penalty an amount equal to all accrued and unpaid payments plus the present value of the lease or connectivity payments which would otherwise have accrued from the date of Customer’s default to the end of the Term. Such present value shall be computed utilizing a rate of 2.00% per annum. Such liquidated damages shall be paid whether or not this Agreement is terminated.
5. Cancellation; Termination
5.1 Cancellation. Subject to compliance with the remainder of this Section 5, Customer may cancel its lease or connectivity) by giving PharmRight written 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 terminate Customer’s lease at any time by giving PharmRight written notice through Customer’s PharmRight account or by contacting PharmRight customer service. PharmRight will continue to provide Services, and Customer will continue to be obligated to pay, through the end of the then current period. PharmRight may terminate 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 reserves the right to discontinue Services and/or terminate or suspend this Agreement immediately without notice if Customer fails to pay amounts when due, Customer’s payment method is denied or Customer or any End User breaches this Agreement. In addition, and without limiting the foregoing, Customer understands that PharmRight may stop or suspend Services for any of the following reasons: (a) strikes, severe weather, earthquakes or other such events beyond PharmRight’s control affect the operation of the System, (b) there is an interruption or unavailability of the service connecting the System, or if the underlying carrier suspends or discontinues service, (c) PharmRight is unable to provide Service because of some action or ruling by any cellular carrier, governmental authority or other third party, and (d) for any other reason as determined in good faith by us. In no event will PharmRight be liable for any damages or subject to any penalty as a result of PharmRight exercising the right to suspend or terminate of this Agreement. Customer’s lease or connectivity 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 forth in 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 that Customer or the applicable End User return leased Equipment to PharmRight or to PharmRight’s designee. In such event, PharmRight will provide instructions to Customer, and Customer agrees promptly to return such Equipment using the original packaging in accordance with PharmRight’s instructions. If Customer or an applicable End User fails to return leased Equipment in accordance with this paragraph, Customer agrees that PharmRight may charge, and Customer will pay, an amount equal to $1,000 as reasonable compensation for the value of the Equipment, and not as a penalty. It shall be Customer’s responsibility to return 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 be solely responsible for all costs of de-installing, packing and shipping the Equipment to PharmRight.
6. Customer's PharmRight Account
6.1 Account Access. PharmRight will provide Customer the opportunity to create a password-protected online account at PharmRight’s Site, through which Customer can manage Customer’s account and change or cancel access to Customer’s Equipment. Customer is responsible for maintaining the confidentiality of Customer’s user login, password and user codes, and Customer is responsible for all uses of Customer’s login, password and user codes, and any related changes, whether or not authorized by Customer. Customer is also responsible 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 leases Equipment and Services or provides the Equipment for use by another person (such as a parent, loved one, client, or customer), that person is considered an “End User” of the System under this Agreement. All End Users of the System are third party beneficiaries to this Agreement and are bound by all of the terms herein, including, without limitation, PharmRight’s disclaimer of warranties and limitation of liability. Customer agrees that, whenever this Agreement or PharmRight’s rules or regulations impose any requirement or prohibition on the End User, Customer will cause all Customer’s End Users to comply with such requirement or prohibition and will be responsible for any noncompliance by any such End User. The System is not designed for, nor intended to be used without the knowledge and consent of any End User. Customer must notify each End User and all other persons who may use the System that they are bound by the terms and conditions of this Agreement and Customer must also instruct each End User (if Customer is not the sole End User) on the proper use of the System. Customer or any applicable End User will use the System only in accordance with this Agreement.
6.3 Customer’s Account Information. Customer must provide complete and accurate registration and account information when Customer establishes Customer’s PharmRight account and when Customer orders any Services or Equipment. Customer must update this information through Customer’s PharmRight account or by calling customer service if there are any changes to this information. Customer agrees that PharmRight may disclose Customer’s account information to meet the requirements of any governmental agency, independent carrier, or other third party to the extent necessary for the use and operation of the System and for legal and regulatory compliance purposes.
7. License Restrictions
7.1 License Grant. Subject to the terms and conditions of the Agreement, PharmRight grants to Customer and its End Users a limited, revocable, non-exclusive license to access and use the Equipment (lease customers only) and the Services during the Term, pursuant to the Terms of Service and solely for Customer’s use (and its End Users’ use) as an automated medication management system. The Equipment and Services are proprietary to PharmRight, subject to PharmRight’s suppliers’ and licensors’ rights, and PharmRight reserves all right, title and interest in and to the Equipment (for lease customers) and Services, including all related software and intellectual property rights. No rights are granted to Customer (or any End User) hereunder other than the limited license and access rights expressly set forth herein.
7.2 Restrictions. Except as expressly permitted herein, Customer shall not, and shall not permit any End User or third party to: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Equipment or Services available to any third party; (ii) translate, adapt, modify, copy, update, revise, enhance, or otherwise alter or create derivative works of the Services; (iii) reverse engineer, disassemble or decompile (or attempt to reverse engineer, disassemble or 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 or programs; (vi) interfere with or disrupt the integrity or performance of the Services; (vii) attempt to gain unauthorized access to the Services or its related systems or networks; (viii) use the Services for unlawful purposes or for any purpose not expressly permitted by the Agreement; (ix) use any Equipment apart from the Services; or (x) make the Services or Equipment available to any third party other than End Users. If PharmRight has reasonable grounds 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 to the Equipment or Services immediately.
8. Ownership of Information Submitted Via Services
8.1 Data Submissions. By using the System and/or providing or submitting any data or content through the System (a “Submission”), Customer hereby grants to PharmRight and its affiliates, subsidiaries, licensees and assigns, an irrevocable, perpetual and royalty-free right to use, reproduce, edit, display, transmit, prepare derivative works of, modify, publish and otherwise make use of the Submission throughout the world and for any purpose related to the business of PharmRight; provided, that, except with respect to purposes related to Customer’s use of the System, or for communications with Customer’s healthcare provider (if approved by Customer in writing), any such use shall be on a de-identified, anonymous basis. By uploading, inputting, providing or submitting Customer’s Submission, Customer warrants and represents that Customer owns or otherwise controls all of the rights to Customer’s Submission as described in this section including, without limitation, all the rights necessary for Customer to provide, post, upload, input or submit the Submission. The rights granted to PharmRight include but are not limited to the right to aggregate, summarize, analyze, resize, crop, censor, compress, edit, feature, caption, and to otherwise alter or make use of Customer’s Submission
9. Equipment Maintenance; Disclaimer of Warranties
9.1 Maintenance. If, during the term of Customer’s lease, the Equipment provided to Customer fails to operate in accordance with the Documentation, PharmRight will provide service and maintenance in accordance with the term and conditions under this Agreement. For Purchased Equipment, limited warranty applies to Equipment during the initial period of connectivity.
9.2 Limitations; Exclusions. PLEASE NOTE THAT REPAIR OR REPLACEMENT OF DEFECTIVE EQUIPMENT OR COMPONENT PARTS THEREOF IS PHARMRIGHT’S SOLE OBLIGATION, AND CUSTOMER’S AND ITS END USERS’ SOLE AND EXCLUSIVE REMEDY FOR FAILURE OF THE EQUIPMENT OR SYSTEM TO OPERATE IN ACCORDANCE WITH THE DOCUMENTATION. PHARMRIGHT MAKES NO EXPRESS WARRANTY INCLUDING ANY WARRANTY OF MERCHANTABILITY OF THE SERVICE OR SYSTEM OR THEIR FITNESS FOR ANY SPECIAL PURPOSE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE AND SYSTEM ARE PROVIDED “AS IS,” WITH ALL FAULTS, AND PHARMRIGHT MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICE OR SYSTEM WILL BE FREE FROM DEFECTS, THAT THEY WILL MEET ANY CUSTOMER’S OR END USER’S NEEDS, OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. THE MAINTENANCE PROVIDED IN THIS SECTION DOES NOT INCLUDE BATTERIES OR ANY PART THAT NEEDS TO BE REPLACED DUE TO ACCIDENT, ABUSE, MISUSE, ACTS OF GOD, VANDALISM, MODIFICATIONS, ATTEMPTED UNAUTHORIZED REPAIRS, FAULTY ELECTRICAL, TELEPHONE, OR NETWORK CONNECTIONS. BY ENTERING INTO THIS AGREEMENT AND USING OUR SYSTEM, CUSTOMER ACKNOWLEDGES THAT PHARMRIGHT DOES NOT REPRESENT OR WARRANT THAT THE EQUIPMENT OR SYSTEM WILL PREVENT DEATH, BODILY OR PERSONAL INJURY, OR ANY OTHER INJURY OR DAMAGE TO CUSTOMER, AN END USER, OR OTHERS WHO USE OUR SERVICES OR EQUIPMENT. ALL IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR ANY SPECIAL PURPOSE, OR NON-INFRINGEMENT ARE DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME STATES DO NOT ALLOW A LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
10. Limitations on Liability
10.1 No Indirect Damages. UNDER NO CIRCUMSTANCES SHALL PHARMRIGHT OR PHARMRIGHT’S OFFICERS, DIRECTORS, SHAREHOLDERS, VENDORS, CONTRACTORS, EMPLOYEES, ASSIGNS, SUBSIDIARIES OR AFFILIATES (COLLECTIVELY THE “PHARMRIGHT PARTIES”) BE LIABLE TO CUSTOMER, ANY END USER, OR ANY THIRD PARTY, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED FOR HEREIN. EXCEPT AS PROVIDED IN SECTION 9.1, TO THE FULL EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL ANY OF THE PHARMRIGHT PARTIES BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY IN WARRANTY, CONTRACT, NEGLIGENCE, STRICT TORT OR OTHERWISE, REGARDING ANY DEFECTS IN THE DESIGN, DEVELOPMENT, PRODUCTION, OR PERFORMANCE OF THE SYSTEM. CUSTOMER EXPRESSLY AGREES AND ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS DEEMED UNCONSCIONABLE. NOTE: SOME STATES DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
10.2 Acknowledgement. Customer understands that: (a) PharmRight is not an insurer of the health or personal safety of any End User; (b) the amount Customer pays to PharmRight is based only on the value of the System PharmRight provides; (c) notification systems may not always operate properly for various reasons; 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 by PharmRight’s failure to perform, any PharmRight Party’s negligence, or a failure of the System or Services. Therefore, Customer agrees that even if a court decides that PharmRight’s breach of this Agreement, a failure of the System, or any PharmRight Party’s negligence caused or allowed any harm or damage (whether personal injury, death or property loss) to Customer, an End User or anyone in or about the premises where the System is installed, Customer agrees that the total liability of the PharmRight Parties shall be limited to the greater of (i) $1,000 and (ii) the amount paid by Customer for the Services during the preceding six (6) months. Customer further agrees that this shall be the only remedy regardless of what legal theory (including without limitation, negligence, breach of contract, breach of warranty or product liability) is used to determine that PharmRight (or any of the foregoing parties) were liable for the injury or loss. CUSTOMER ACKNOWLEDGES AND AGREES THAT IF PHARMRIGHT WERE TO HAVE ANY LIABILITY GREATER THAN THE AMOUNTS DESCRIBED IN THIS AGREEMENT, PHARMRIGHT’S RISK OF LIABILITY WOULD BE TOO GREAT AND PHARMRIGHT COULD NOT PROVIDE PHARMRIGHT’S SERVICES TO CUSTOMER. CUSTOMER ALSO ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS SELECTED THE EQUIPMENT AND SERVICES WITH A FULL UNDERSTANDING OF THE LIMITATION OF PHARMRIGHT’S LIABILITY IN THIS AGREEMENT. No action arising out of this Agreement, regardless of form, may be brought by Customer or on Customer’s behalf more than one year after the date the cause of action has accrued.
Customer agrees to defend, indemnify, and hold harmless PharmRight, its affiliates, its contractors, and all of their respective directors, 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 the Equipment, fraud, violation of law, willful misconduct by Customer or any End User, 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 AND EACH END USER HAVE NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESS SERVICE CARRIER PROVIDING COMMUNICATIONS SERVICE TO THE EQUIPMENT AND SYSTEM “UNDERLYING CARRIER”) AND CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN PHARMRIGHT AND UNDERLYING CARRIER. CUSTOMER AND EACH END USER UNDERSTAND AND AGREE THAT THE UNDERLYING CARRIER HAS NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO CUSTOMER. IN ANY EVENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, CUSTOMER AND EACH END USER’S EXCLUSIVE REMEDY FOR CLAIMS ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF SERVICE PROVIDED HEREUNDER, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY OR ON BEHALF OF CUSTOMER FOR THE SERVICES DURING THE TWO MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
CUSTOMER AND EACH END USER AGREE TO INDEMNIFY AND HOLD HARMLESS THE UNDERLYING WIRELESS SERVICE CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST 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, FAILURE TO USE, OR INABILITY TO USE THE EQUIPMENT EXCEPT WHERE THE CLAIMS RESULT FROM THE UNDERLYING CARRIER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY WILL SURVIVE THE TERMINATION OF THE AGREEMENT.
CUSTOMER AND EACH END USER HAVE NO PROPERTY RIGHT IN ANY TELEPHONE NUMBER ASSIGNED TO THE EQUIPMENT AND UNDERSTAND THAT ANY SUCH NUMBER CAN BE CHANGED FROM TIME TO TIME. CUSTOMER AND EACH END USER UNDERSTAND THAT PHARMRIGHT AND THE UNDERLYING CARRIER CANNOT GUARANTY THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES. THE SERVICE IS FOR CUSTOMER USE AND USE BY END USERS ONLY AND CUSTOMER MAY NOT RESELL THE SERVICE TO ANY OTHER PARTY.
CUSTOMER AND EACH END USER UNDERSTAND THAT THE UNDERLYING CARRIER DOES NOT GUARANTEE ANY UNINTERRUPTED SERVICE OR UBIQUITOUS COVERAGE. CUSTOMER AND EACH END USER ACKNOWLEGE THAT SERVICE IS SUBJECT TO RISKS INCLUDING BUT NOT LIMITED TO, LACK OF COVERAGE, DISRUPTION, BREAKDOWN, DATA LOSS, HARM TO DATA INTEGRITY, DELAYED TRANSMISSION, LATENCY AND OTHER PERFORMANCE LIMITATIONS (THE “SERVICE LIMITATIONS”). THE UNDERLYING CARRIER DOES NOT WARRANT THAT END USERS CAN OR WILL BE LOCATED IN AN AREA WHICH PERMITS USING THE SERVICE.
THE UNDERLYING CARRIER MAKES NO WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, OR PERFORMANCE REGARDING ANY SERVICES OR GOODS, AND IN NO EVENT SHALL THE UNDERLYING CARRIER BE LIABLE, WHETHER OR NOT DUE TO ITS OWN NEGLIGENCE, FOR ANY: (A) ACT OR OMISSION OF A THIRD PARTY INCLUDING, BUT NOT LIMITED TO, INTENTIONAL OR NEGLIGENT ACTS OF THIRD PARTIES THAT DAMAGE OR IMPAIR THE NETWORK OR DISRUPT SERVICE; (B) MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, FAILURES TO TRANSMIT, DELAYS, OR DEFECTS IN THE SERVICE PROVIDED BY OR THROUGH THE UNDERLYING CARRIER; (C) DAMAGE OR INJURY CAUSED BY SUSPENSION OR TERMINATION BY THE UNDERLYING CARRIER; OR (D) DAMAGE OR INJURY CAUSED BY A FAILURE OR DELAY IN CONNECTING A CALL TO ANY ENTITY, INCLUDING 911 OR ANY OTHER EMERGENCY SERVICE. TO THE FULL EXTENT ALLOWED BY LAW, CUSTOMER AND EACH END USER RELEASES, INDEMNIFIES AND HOLDS THE UNDERLYING CARRIER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS OF ANY PERSON OR ENTITY FOR DAMAGES OF ANY NATURE ARISING IN ANY WAY FROM OR RELATING TO, DIRECTLY OR INDIRECTLY, SERVICES PROVIDED BY THE UNDERLYING CARRIER OR ANY PERSON’S USE THEREOF, INCLUDING CLAIMS ARISING IN WHOLE OR IN PART FROM THE ALLEGED NEGLIGENCE OF THE UNDERLYING CARRIER.
14.1 Severability. If a court of competent jurisdiction finds any provision of this Agreement unlawful or unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. 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 of PharmRight in this Agreement shall be upheld and applied to the maximum extent permitted by law.
14.2 Entire Agreement. This Agreement (including Orders that reference this Agreement) constitutes the entire agreement between Customer and PharmRight. By entering into this Agreement, Customer affirms that Customer is not relying on any other advice, advertisements, or any other representation, promise, condition, inducement, or warranty, express or implied, from any person that is not expressly and specifically set forth in writing in this Agreement. In the event of a conflict between this Agreement and any other communication, request, agreement or order (including any order form not supplied by PharmRight), the terms of this Agreement shall prevail.
14.3 Assignment. PharmRight reserves the right to assign this Agreement, in whole or in part, or to subcontract any of PharmRight’s obligations hereunder without notifying Customer and without obtaining Customer’s consent. By way of example, and not limitation, Customer agrees that PharmRight may assign PharmRight’s rights to receive lease or connectivity payments under this Agreement to a third party. In the event of such assignment, Customer agrees to accept communication from such third party and to make payment to such third party to the full extent as Customer would be obligated to make payment to PharmRight hereunder. Customer may not assign this Agreement, in whole or in part, to someone else (including someone who purchases or rents Customer’s premises) unless PharmRight approves the transfer in writing.
14.4.1 DISPUTES RELATING TO OR ARISING UNDER THIS AGREEMENT SHALL BE SUBMITTED TO BINDING ARBITRATION PURSUANT TO THE PROCEDURE DESCRIBED HEREIN BELOW. ARBITRATION SHALL OCCUR IN CHARLESTON, SOUTH CAROLINA IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ARBITRATION MAY BE INITIATED BY WRITTEN NOTICE FROM ANY PARTY TO THE OTHER OF THE INTENT TO INVOKE ARBITRATION (THE “ARBITRATION NOTICE”), WHICH SHALL BE A COMPULSORY AND BINDING PROCEEDING ON THE PARTIES THERETO. THE PARTIES MUST MAKE A GOOD FAITH EFFORT TO AGREE UPON THE SELECTION OF A SINGLE NEUTRAL AND IMPARTIAL ARBITRATOR TO RESOLVE THE DISPUTE. IF THE PARTIES DO NOT AGREE UPON A SINGLE ARBITRATOR WITHIN FIVE (5) BUSINESS DAYS AFTER THE DATE THE ARBITRATION NOTICE IS DELIVERED, EACH PARTY SHALL CHOOSE A NEUTRAL AND IMPARTIAL ARBITRATOR WITHIN TEN (10) BUSINESS DAYS AFTER THE DATE THE ARBITRATION NOTICE IS DELIVERED. THE ARBITRATORS SO CHOSEN SHALL THEN CHOOSE AN ADDITIONAL ARBITRATOR WITHIN FIFTEEN (15) BUSINESS DAYS AFTER THE DATE THE ARBITRATION NOTICE IS DELIVERED. THE ADDITIONAL ARBITRATOR SHALL BE THE CHAIRPERSON OF THE ARBITRATION PANEL. THEREAFTER, THE ARBITRATORS (THE “ARBITRATION PANEL”) SHALL CONSULT AND CONDUCT A HEARING. IF THE ARBITRATION PANEL DOES NOT REACH A UNANIMOUS 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 THE PROCEEDING AND RENDER A DECISION AS EXPEDITIOUSLY AS PRACTICABLE. A DECISION CONCERNING A FUNDAMENTAL DECISION DEADLOCK SHALL BE RENDERED WITHIN THIRTY (30) DAYS FOLLOWING FINAL SELECTION OF THE ARBITRATOR OR ARBITRATION PANEL. A DECISION OF THE ARBITRATOR(S) SHALL BE FINAL AND BINDING UPON THE PARTIES, AND JUDGMENT MAY BE OBTAINED THEREON BY ANY PARTY BY A COURT OF COMPETENT JURISDICTION. EACH PARTY SHALL BEAR THE COST OF PREPARING AND PRESENTING ITS RESPECTIVE CASE. THE COST OF THE ARBITRATION, INCLUDING THE FEES AND EXPENSES OF THE ARBITRATOR(S), SHALL BE SHARED EQUALLY BY THE PARTIES UNLESS THE AWARD PROVIDES OTHERWISE. IT IS HEREBY AGREED THAT ANY ARBITRATOR SELECTED UNDER THIS PARAGRAPH SHALL HAVE QUALIFICATIONS WHICH SHALL INCLUDE EXPERIENCE AND 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 legal proceeding arising out of or related to this Agreement or the transactions contemplated hereby or thereby.
14.6 Governing Law and Venue. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of South Carolina, as if performed wholly within the state and without giving effect to the principles of conflicts of laws. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Any dispute between the parties regarding this Agreement will be subject to the exclusive venue and applicable laws of the state and federal courts located in Charleston County, South Carolina.
14.7 Third Party Beneficary. Customer hereby agrees that each End User 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 and PharmRight may enforce the terms and conditions of this Agreement that apply to End Users.
14.8 Notices. If Customer or PharmRight wish to give the other party written notices under this Agreement, they must be (a) in writing, (b) if to Customer, sent to Customer’s email address on file with PharmRight (or posted in Customer’s PharmRight account if no email address is on file), (c) if to us, sent by overnight courier, certified or registered mail, or other reliable means (with confirmation of delivery) to PharmRight’s principal business address listed on PharmRight’s Site. Notices will be effective upon delivery.
14.9 Amendments. PharmRight may modify this Agreement at any time and from time to time in PharmRight’s sole discretion by providing to Customer an updated copy. If PharmRight modifies this Agreement in a way that substantially changes any of Customer’s rights hereunder, PharmRight will notify Customer by email at least thirty (30) days (or such longer period if required by law) prior to any such changes taking effect. Notwithstanding the above, Customer should periodically review this Agreement carefully in order to make sure that Customer are aware of the most current terms and conditions for the use of the System, because any use of the System by Customer after any change to this Agreement, whether or not Customer have reviewed the amended Agreement,