Partner Terms

IF YOU ARE A PARTNER OF COMPANY, YOU ARE SUBJECT TO COMPANY’S MASTER SUBSCRIPTION TERMS AND CONDITIONS AND THESE PARTNER TERMS AND CONDITIONS (“PARTNER TERMS”). CERTAIN OF THESE PARTNER TERMS ALSO APPLY TO PARTNER CUSTOMERS AND PARTNER USERS AS DEFINED IN THE MASTER SUBSCRIPTION TERMS AND CONDITIONS. PLEASE SCROLL DOWN AND CAREFULLY READ ALL THE TERMS AND CONDITIONS CONTAINED HEREIN BEFORE USING OR DISTRIBUTING THE SOFTWARE AND SERVICES DESCRIBED HEREIN.

1. Grant of License. Notwithstanding anything to the contrary set forth in the Agreement, We hereby grant You the limited, non-exclusive, non-transferable, non-assignable, and non-exclusive right and license to use, market, and distribute the Software and Services indicated in Your Order Form, along with the Documentation associated with such Software and Services, to Partner Customers and Partner Users solely for the purpose of Partner Customers’ and Partner Users’ internal business use. We reserve the right to appoint other distributors for the scope set forth in the Order Form and/or to directly sell or license the Software and Services within the scope. You agree not to solicit directly or indirectly orders for Software or Services outside of the scope without our prior written consent and You shall promptly forward contact information for prospective Users of the Software and Services located outside the scope to Us.
   
2. Reservation of Rights. All rights not expressly granted in the Agreement or these Partner Terms are reserved by Us. Partner acknowledges that: (i) all Software and Services are licensed and not sold; (ii) We shall retain sole and exclusive ownership of and all rights, title, and interest in the Software and Services, including without limitation (whether developed by Us, You, or a third party) (a) Intellectual Property embodied or associated with the Software and Services; (b) deliverables and work product associated with the Software and Services, and (c) all copies and derivative works thereof; and (iii) the Software and Services, including the source and object codes, logic and structure, constitute valuable trade secrets of Company. Partner agrees to secure and protect the Software and Services consistent with the maintenance of our and our licensors’ rights therein, as set forth in this Agreement and the Partner Terms. Partner agrees to execute such further instruments and take such further actions as We may reasonably request, at our expense, to apply for, register, perfect, confirm, and protect our rights.
   
3. Restrictions. Partner shall not itself, or through any affiliate, employee, consultant, contractor, agent, or other third Party, except as permitted by the Partner Terms and this Agreement: (i) copy, decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer, or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure, or other elements of the Software and Services , in whole or in part, for competitive purposes or otherwise; (ii) allow access to, provide, divulge, or make available the Software and Services to any user other than those who have licenses to access; (iii) write or develop any derivative works based upon the Software and Services ; (iv) modify, adapt, translate, or otherwise make any changes to the Software and Services or any part thereof; (v) use the Software and Services to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis; (vi) otherwise use or copy the Software and Services except as expressly permitted herein; or (vii) except as permitted herein, remove from any Software and Services identification, patent, copyright, trademark, or other notices or circumvent or disable any security device’s functionality or features. For the avoidance of doubt, Partner may copy or reproduce Software and Services for the limited purpose of creating internal training materials for use by Partner and employees or agents in connection with their performance of the Partner Services, provided that such materials are destroyed upon the termination of this Agreement. Partner shall ensure that all users of the Software and Services comply with the terms and conditions of the Agreement and shall promptly notify Us of any actual or suspected violation. Further, Partner will cooperate with Us with respect to investigation and enforcement of this Agreement and the Partner Terms; provided that We will reimburse Partner for any out-of-pocket costs incurred by Partner, including without limitation, reasonable attorneys’ fees in connection with such cooperation.
   
4. License to Marks. During the Term of this Agreement, We grant to Partner a non-transferable, non-exclusive, limited license to use our logos, trademarks, and trade names (collectively the “Company Marks”) in connection with the Partner Services. Such license shall immediately terminate upon the expiration or termination of this Agreement. Partner shall strictly comply with all standards of use for the Company Marks and must at all times display appropriate trademark and copyright notices as instructed by Us. All media advertising, printed materials, and electronic documents in which a Company Mark is used must be submitted to Us for review in advance and must not be distributed or used in any manner without the prior written approval of Company. The Company Marks and other intellectual property licensed to Partner, if any, are the sole and exclusive property of Company. Partner shall not do anything that will in any manner infringe, impeach, dilute, or lessen the value of the Company Marks, patents, copyrights, or other intellectual property of Company or the goodwill associated therewith or that will tend to prejudice the reputation of Company or the Software and Services.
5. Private Label. If the Order Form indicates that Partner has private label rights, then upon written approval by Us of the private label marks, which shall not be unreasonably withheld, Partner may distribute, market, and license the Software and Services under its own trademarks, trade names, and logos.
   
6. Partner Services. You agree that You shall perform the Partner Services in accordance with the highest standards of care, skill, and diligence in the industry and in full compliance with all applicable laws, rules, and regulations. You further warrant that the Partner Services will be provided in a professional, timely, efficient, and workmanlike manner and in accordance with the highest quality standards. This warranty shall survive the termination or expiration of the Agreement.
   
7. Partner Customer Agreements. Partners shall cause all Partner Customers and Partner Users to execute and or acknowledge an end-user license agreement that conforms with the terms set forth in the Master Subscription Terms and Conditions and these Partner Terms.
   
8. Partner Indemnity. Partner shall indemnify, defend and hold harmless Company from and against any and all claims, actions, suits, proceedings, costs, expenses, damages, liabilities and losses, including reasonable attorneys’ fees, arising out of or relating to (a) any breach or alleged breach of this Agreement or the Partner Terms by Partner, or (b) any dispute or controversy between Partner and any Partner Customer arising from any agreements with a Partner Customer.
   
9. Exclusivity. During the Term and so long as We have not been determined to be in material breach of the Agreement, You agree that We will be the exclusive provider to you and all Partner Customers of the Software and Services, Professional Services, Clearinghouse Services, E-Prescribing Services, Payment Services, and any other substantially similar software or services, at all present or future locations, sites, or facilities that You own or control. In addition, during the Term, You shall not solicit bids, quotes, or contracts from another provider of services substantially similar to the Software and Services, Professional Services, Clearinghouse Services, or Payment Services for the provision of such services to such additional locations, sites, or facilities not presently covered by the Agreement.
   
10. Effect of Termination; Data Export. Upon termination of the Agreement and these Partner Terms, Partner shall bear the full responsibility for the migration of its Partner Customers’ and Partner Users’ data to new software or services. All Partner Customers’ and Partner Users’ subscriptions and license(s) shall terminate and neither You nor Partner Customers nor Partner Users shall use or access, directly or indirectly, the Software and Services; (b) our obligation to perform support services, if any, shall cease; and (c) all fees and other amounts owed to us will be immediately due and payable by You. If You have made any copies of our Confidential Information, Intellectual Property, or other property or materials owned by the Company, including without limitation the Software and Services, You shall either destroy or return them, along with a signed certificate that all such copies have been either destroyed or returned, respectively, and that You have not retained a copy of any part of the Software and Services in any form. Upon termination of the Agreement, We may advertise, market, and solicit any Partner Customers or Partner Users, and without restriction, provide them with services and products, whether or not substantially similar to Yours.
    
11. Reporting. Upon request, Partner shall provide Company with a quarterly report within thirty (30) days after the end of each calendar quarter describing the details of the Partner’s distribution of the Protected Materials. The quarterly report shall include the volume of sales, revenue generated, payments received, and any other relevant metrics related to the distribution of and payment for the Protected Materials required by the Company to be included in the report. During the Term, and for the greater of (i) five (5) years, or (ii) as long as required by law, Partner shall retain all records related to its compliance with this Agreement and the Partner Terms.
    
12. Audit Rights. Company shall have the right to audit Partner’s records relating to the distribution of the Protected Materials to verify compliance with Partner’s payment and reporting obligations. Company shall provide 30 days’ written notice prior to conducting an audit. Audits shall be conducted during normal business hours. If an audit reveals a discrepancy between payments made by Partner and the audit findings or report, Partner shall pay the difference to Company within five (5) business days of receiving notice from the Company.
    
13. Interpretation. In the event of a conflict between any of these Partner Terms and the other terms of this Agreement, these Partner Terms shall control to the extent they clearly apply to a Partner or Partner obligations or responsibilities. In the event of any other conflict, the other terms and conditions of the Agreement shall control.

Partner Surescripts Requirements

1. Distribution Limitations. Do not distribute the E-Prescribing Services to entities that have technology vendors as customers for any line of business, health plans, pharmacies, patients, health information exchanges, health information networks, qualified health information networks, and pharmaceutical companies; however, any healthcare provider that is owned or operated by a health plan may receive the E-Prescribing Services.
   
2. Distribution Prohibition (Healthcare Providers). If you are a healthcare provider, You may not distribute the E-Prescribing Services, and any attempt to distribute the E-Prescribing Services shall be null and void and have no effect.
   
3. Surescripts Approval. You shall not gain access to the E-Prescribing Services until receiving approval by Surescripts.
   
4. Use Case Questionnaire. You hereby represent and warrant that you have truthfully completed any Surescripts Use Case Questionnaire You are required to complete by Us, and You will not use the E-Prescribing Services for any use case other than those approved by Surescripts and Us.
   
5. Termination for Improper Use. If You make changes that thereafter make Your use of the E-Prescribing Services a breach of this Agreement, then We may immediately, but no later than twelve (12) months following our notice of such change, transition You off the Surescripts Network and/or the E-Prescribing Services.
   
6. Audit. You shall allow Us and Surescripts, or through a designee, to access, inspect, and audit Your records relating to the use of the E-Prescribing Services by Users.
   
7. Distribution Sub-tiers. You may not appoint any additional tiers of sub-distributors to distribute the E-Prescribing Services, without prior written permission from Surescripts and Us.
   
8. Subordination. You expressly acknowledge that Your Agreement with Us is subject to and subordinate in all respects to these Partner Surescripts Requirements.
   
9. No Material Modifications to Certified Software. You shall not modify, change, or otherwise alter certified software in any manner that materially impacts compatibility with the Surescripts Network, without first providing advance written notice to Us and seeking certification from Us and Surescripts of the software as modified or changed. You shall ensure that any software certified by Surescripts under this Agreement, inclusive of such software’s user interface, will not be materially altered by You. For example, re-configurations of the User Interface (UI) workflow or display, and/or the inclusion (or removal) and support of the message payload that impacts the Surescripts Application Certification Requirements may require re-certification; however, the ability to customize software UI logos and marks is not considered a reconfiguration.
   
10. Surescripts Materials. You agree to fully comply with the terms and conditions of the Surescripts Materials. The Surescripts Materials may be amended by Surescripts in its sole discretion.
    
11. Identity Proofing and Authentication. You shall conduct identity proofing and authentication sufficient to comply with the Surescripts Materials, applicable law, and industry standards to Surescripts’ and our reasonable satisfaction in order to confirm that all messages transmitted via the Surescripts Network originate from Authorized Users who are (i) licensed to use the E-Prescribing Services as certified by Surescripts and (ii) registered with Us and You in accordance with this Agreement and the Partner Terms.
    
12. Advertising and Clinical Decision Support. You shall not, use any means, program, or device, or permit any other person to use any means, program, or device, including, but not limited to, advertising, instant messaging, and pop-up ads, to influence or attempt to influence, through economic incentives or otherwise, the prescribing decision of a prescriber at the point of care if: (i) such means, program, or device (as described above) is triggered by, initiated by, or is in specific response to, the input, selection, and/or act of a prescriber or his/her agent prescribing a pharmaceutical or selecting a pharmacy for a patient; and (ii) that prescription is to be delivered via the Surescripts Network.
    
    1. Notwithstanding the immediately preceding paragraph, You may: (A) show information regarding a payer’s formulary and benefit plan design, including patient lowest cost options, on/off tier, prior authorization, step therapy, coverage status, and co-pay information, drug availability by location or pharmacy; and/or (B) deliver or have delivered to Authorized Users who may access the E-Prescribing Services clinical alerts that are sourced from payers and/or are attributed to generally recognized and reputable sources providing clinical information to the prescriber, even if, in the event of either (A) or (B), such information influences the patient or prescriber’s choice of pharmacy or other prescribing decisions. In addition, in the event of either (A) or (B) above, You shall: (i) allow Authorized Users to access all pharmaceuticals known through generally available sources used in the industry, and all pharmacies, including all retail and mail service pharmacy options available; and (ii) not design the software to preclude a physician or patient from selecting any particular pharmacy or pharmaceutical.
       
13. Pharmacy Chains. You have the right to elect not to use the E-Prescribing Services to transmit prescriptions to a particular pharmacy chain or pharmacy benefit manager, provided that You must elect to delete the entire pharmacy chain and all pharmacies owned or controlled by such chain, or the entire pharmacy benefit manager and all associated health plans under the pharmacy benefit manager. Surescripts will take reasonable steps to terminate the connection in the Surescripts Network between Authorized Users and the pharmacy data source deleted pursuant to such election no earlier than thirty (30) days following such notice and no later than ninety (90) days following such notice.
    
14. Competition with Surescripts Data Sources. You shall not use the Surescripts Network or Surescripts Data to compete with its data sources in their primary areas of business, which include pharmacy, health plan, and pharmacy benefit management areas of business.
    
15. Transmission of Data. You shall transmit information pursuant to the applicable E-Prescribing Service in accordance with the Surescripts Materials for the particular E-Prescribing Service and in accordance with applicable law.
    
16. Confidentiality. You shall maintain Surescripts’ Confidential Information in compliance with this Agreement and with no less than a reasonable degree of care.