This Master Services Agreement (“Agreement”) is entered into between PinBallCo LLC (“PharmacyAI” or “we”) and you or the entity you represent (“Customer” or “you”) as of the Effective Date as indicated on any duly executed Order Form that incorporates the terms of this Agreement by reference. This Agreement sets forth the terms and conditions under which Customer may access and use the Software and Services (defined below), except where we expressly state that separate terms apply. This Agreement includes any ancillary documents (e.g., attachments, addenda, exhibits) expressly referenced below, including our Terms of Service and Privacy Policy, and any Order Forms that reference this Agreement. To the extent our Terms of Service conflict with this Agreement, this Agreement governs with respect to the Software and Services provided hereunder. To the extent this Agreement conflicts with any Order Form, the terms of the Order Form govern with respect to the Software and Services provided thereunder.
From time to time, PharmacyAI may modify this Agreement. Unless otherwise specified by PharmacyAI, changes become effective for Customer upon renewal of the then-current Subscription Term or upon the effective date of a new Order Form after the updated version of this Agreement goes into effect. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or upon the effective date of a new Order Form, and in any event continued use of any Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
License and Restrictions.
License. Subject to the terms and conditions of this Agreement, during the Subscription Term, PharmacyAI grants to Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable, and worldwide license to use PharmacyAI’s pharmacy workflow automation software and related dependent files (“Software”) solely for Customer’s internal business purposes and solely within the United States. Except for the rights expressly granted in this Agreement, PharmacyAI owns and reserves all right, title and interest in and to, its Software and any underlying intellectual property rights. PharmacyAI may, in its sole discretion, change or update the Software and related Services from time to time, including by making improvements, modifications, upgrades, updates, enhancements, or replacements thereto, and such changes shall be included within the defined term “Software.” PharmacyAI will notify Customer in advance of any changes to the Software that materially reduce its core functionalities.
Locations. The Software shall only be downloaded onto and operated from a Customer-owned computer server (the “Server”) and used only by workstations (“Clients”) that are physically located in the locations listed on the Order Form. Additional locations can be added upon mutual agreement between the Parties. Transfers of the Software to other physical locations in contravention of this Section shall be deemed to be a material breach of this Agreement.
Authorized Users. Customers may allow its employees and contractors to use the Software, up to the number of seats listed on the Order Form (“Authorized Users”). Customer shall be fully responsible for each Authorized User’s use of the Software and related Services, and is responsible for its Authorized User’s compliance with this Agreement.
General Restrictions and Obligations. Customer shall use the Software and related Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations, including without limitation, those laws related to data privacy, patient privacy, international communications, export laws and the transmission of technical or personal data laws, and all applicable pharmacy practice laws, rules, and regulations of the state boards of pharmacy in which Customer operates). Customer acknowledges that: (a) except as otherwise enabled through optional features that Customer may elect to activate, the Software is intended solely as a pharmacy workflow automation tool for administrative and data-entry functions and does not perform any clinical decision support, drug utilization review, allergy or interaction checking, or therapeutic judgment functions; (b) a licensed pharmacist must independently verify all outputs of the Software and all prescriptions processed with the assistance of the Software before dispensing; and (c) the Software does not replace or substitute for the professional judgment of a licensed pharmacist or other licensed healthcare professional. Customer shall not (and shall not allow any third party to): (i) reproduce, modify, translate, or create derivative works of the Software, any underlying ideas, technology, or related software, or any portion thereof; (ii) copy, rent, sell, lease, distribute, publish, circulate, disseminate, pledge, assign, or otherwise transfer, encumber rights to, or allow access to the Software or any part thereof or use or seek to commercially exploit any of the foregoing for the benefit of any third party; (iii) disassemble, decompile, reverse engineer, or translate any software related to the Software, or otherwise attempt to discover any source code, object code, or underlying proprietary information, except to the extent that such restriction is prohibited by applicable law; (iv) remove or otherwise alter any proprietary notices or labels from the Software or any portion thereof; (v) interfere with, modify, disrupt or disable features or functionality of the Software, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Software; (vi) access the Software in order to build a similar or competitive product or service to PharmacyAI’s products; (vii) perform benchmark tests on the Software without the prior written consent of PharmacyAI; (viii) use the Software to violate applicable laws or regulations, or the rights of any third party; or (ix) use the Software for any clinical decision support, drug utilization review, or therapeutic decision-making purposes other than through optional features expressly enabled by PharmacyAI and activated by Customer. If requested, Customer will provide information necessary for PharmacyAI to verify Customer’s compliance with this Section.
Support and Other Services. PharmacyAI shall provide Customer with such additional technical assistance and customer support to ensure the Software is functioning properly, and such other services as may be listed on the applicable Order Form (the “Services”). Customer acknowledges and agrees that timely access to applicable Customer systems, resources, personnel, equipment, or facilities is necessary for the provision of Services. PharmacyAI will have no liability for any delay or deficiency to the extent resulting from any delay or failure by Customer to provide access.
Fees and Payment.
Fees and Payment. All fees and payment terms are set forth in the applicable Order Form. Except as expressly set forth in this Agreement and to the extent permitted by law, all payment obligations are non-cancelable and fees are non-refundable. If not otherwise specified, fees will be due within thirty (30) days of invoice. If Customer requires the use of a purchase order or purchase order number, Customer must (a) provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are void.
Taxes. Amounts due under this Agreement are payable to PharmacyAI without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Customer shall separately pay PharmacyAI the withheld or deducted amount.
Payment Disputes. Customer must dispute any fees within thirty (30) days of payment due date. Except for payments disputed in good faith, any payments past due hereunder shall bear interest at a rate of 1.5% per month (or, if lower, the maximum rate permitted by applicable law). If the Parties are unable to resolve such payment dispute within thirty (30) days, each Party shall have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
Customer Data; IP.
Rights in Customer Data. As between the Parties, Customer or its licensors retain all right, title, and interest in and to the Customer Data and any modifications made thereto in the course of operation of the Software and Services. Subject to the terms of this Agreement and any applicable Business Associate Agreement, Customer hereby grants to PharmacyAI a non-exclusive, worldwide, royalty-free right to process the Customer Data (a) to the extent necessary to provide, maintain and improve the Software and Services to Customer, (b) to address service or technical problems therein, (c) to perform PharmacyAI’s obligations under this Agreement or to exercise its rights hereunder, (d) subject to Customer’s prior consent (which may be provided through the Software’s administrative settings or a separate opt-in mechanism), to facilitate data sharing between Customer and other PharmacyAI customers for purposes of inventory marketplace services and related features, and (e) to the extent future features require processing of Customer Data on systems other than Customer’s local server, subject to Customer’s prior consent, and in each case in compliance with all applicable laws including HIPAA and applicable state privacy laws. PharmacyAI will not use any Protected Health Information to train any AI models. PharmacyAI will not sell or share Customer Data or otherwise disclose Customer Data to any third party except (i) as expressly permitted under this Agreement or the applicable Business Associate Agreement, or (ii) to other PharmacyAI customers in connection with services for which Customer has provided consent. “Customer Data” shall refer to any data or data files that are uploaded by or on behalf of Customer, or to which Customer otherwise provides access, for processing in the Software, including any Protected Health Information therein. Customer represents and warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to PharmacyAI under this Agreement, and that the processing of Customer Data by the Software in accordance with this Agreement will not violate any laws or the rights of any third party.
Usage Data. Notwithstanding the foregoing, PharmacyAI may collect and create usage data, statistics, aggregated and anonymized data, de-identified data, and derived data from Customer’s use of the Software and Services, and Customer Data (“Usage Data”). As between the parties, PharmacyAI shall own and/or control any and all Usage Data. To the extent permitted by applicable laws, PharmacyAI may use Usage Data to develop, improve, support, and operate its products and services, including for analytics, product development, demand forecasting, and operational insights. PharmacyAI may share Usage Data with third parties, provided that such Usage Data (a) does not include Customer’s Confidential Information except as otherwise permitted hereunder, and (b) either (i) cannot be re-identified or re-attributed to Customer or any particular individual, or (ii) is shared in connection with inter-customer services for which the applicable customers have provided consent.
Feedback. Customer may submit to PharmacyAI feedback, comments, ideas, or suggestions regarding PharmacyAI’s Software and Services or new products and services (“Feedback”). As between the parties, PharmacyAI shall own and/or control any and all Feedback. PharmacyAI may, but has no obligation to, in its discretion and for any purpose, (a) use, modify, and incorporate Feedback into its products and services, and (b) license, sublicense, or distribute the Feedback without obligation or compensation to Customer.
Third-Party Products. At your direction or instruction, the Services may access or operate products and services offered by third parties (collectively, “Third Party Products”). PharmacyAI does not endorse or make any representations or warranties about Third Party Products, and Customer hereby acknowledges that PharmacyAI is not responsible or liable for the operation, content, functions, accuracy, legality, appropriateness, or any other aspect of such Third Party Products. Any purchase or use of Third Party Products may be subject to additional terms of the applicable third-party provider (“Third Party Terms”). Customer shall comply with all Third Party Terms and shall indemnify and hold PharmacyAI harmless from all damages, costs, settlements, attorneys’ fees and expenses arising from or related to Customer’s breach of any Third Party Terms. Any provision by PharmacyAI of Third Party Products, and any exchange of data between Customer and any third-party provider of a Third Party Product, is solely between Customer and the applicable third-party provider.
Term and Termination.
Term. This Agreement shall commence upon the Effective Date and shall continue in full force and effect until all outstanding Order Forms have expired or been terminated in accordance herewith. Unless otherwise stated on an Order Form, each Order Form shall have a Subscription Term of one year and shall auto-renew unless either party gives at least thirty (30) days’ written notice prior to the end of the then-current Subscription Term.
Termination. Either party may terminate this Agreement with notice if (a) the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings. PharmacyAI may terminate the Agreement if it has the right to suspend the Software, or in order to comply with law or regulation. If Customer does not have an active Order Form and has paid all fees, Customer may terminate the Agreement at any time.
Suspension. In addition to any other remedies it may have, PharmacyAI reserves the right to suspend access to the Software: (a) if any fees are sixty (60) days or more overdue (and are not otherwise under good-faith dispute), (b) if PharmacyAI deems such suspension necessary as a result of Customer’s breach of Section 1 (License and Restrictions), (c) if PharmacyAI reasonably determines suspension is necessary to avoid material harm to Pharmacy AI or its other customers, including as a result of repeated infringement of third-party rights, or (d) as required by law or at the request of governmental entities.
Effect of Termination. Upon termination or expiration of this Agreement, all licenses provided under this Agreement shall cease. Customer must immediately cease using and accessing the Software and Services, and shall promptly erase all copies of Confidential Information in Customer’s possession. PharmacyAI shall have no further obligation to make Customer Data or the Software and Services available. Any provisions which by their nature should survive the termination or expiration of this Agreement shall do so.
Information Security and Data Privacy.
Information Security. PharmacyAI has implemented and will maintain an industry-standard information security program that incorporates administrative, technical, and physical safeguards designed to ensure the security, confidentiality, integrity, and reliability of Customer Data, including any Protected Health Information, consistent with the requirements of the HIPAA Security Rule (45 C.F.R. Part 164, Subpart C).
Data Privacy. Prior to exchanging any Protected Health Information (as defined under HIPAA), the parties shall execute a Business Associate Agreement (“BAA”), attached hereto as Exhibit A and incorporated herein by reference. In the event of any conflict between the terms of this Agreement and the terms of the BAA, the BAA shall govern with respect to any Protected Health Information. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH Act), and all regulations promulgated thereunder, including the Privacy Rule (45 C.F.R. Part 164, Subpart E), the Security Rule (45 C.F.R. Part 164, Subpart C), and the Breach Notification Rule (45 C.F.R. Part 164, Subpart D).
Customer Data Authority. Customer represents and warrants that: (a) it has all necessary rights, permissions, and authority to provide Customer Data to PharmacyAI, including any Personal Data and Protected Health Information; (b) Customer has obtained all necessary authorizations, consents, or other legal bases required under applicable law, including but not limited to HIPAA and applicable state privacy laws, to disclose such data to PharmacyAI and to permit PharmacyAI to process such data in accordance with this Agreement and any applicable Business Associate Agreement; (c) the provision of Customer Data to PharmacyAI and Pharmacy AI’s use of such data as contemplated by this Agreement and any applicable Business Associate Agreement does not and will not violate any applicable law, regulation, or agreement to which Customer is bound, or the rights of any third party; (d) Customer will comply with all applicable pharmacy practice laws, rules, and regulations of the state boards of pharmacy in which Customer operates and will ensure that a licensed pharmacist independently verifies all outputs of the Software and all prescriptions processed with the assistance of the Software before dispensing; (e) Customer will maintain all necessary licenses, permits, and registrations required to operate as a pharmacy in each jurisdiction in which Customer uses the Software; and (f) if Customer elects to activate any optional feature related to drug utilization review or override code entry, Customer assumes full responsibility for the use of such feature, including ensuring appropriate human oversight and compliance with all applicable laws and regulations.
Use of Customer Data for AI. Customer acknowledges and agrees that the Software and Services may utilize artificial intelligence and machine learning technologies, including to develop, support, and improve PharmacyAI’s products and services. Notwithstanding the foregoing: (a) PharmacyAI does not and shall not use any Protected Health Information for training such technologies, and (b) except for optional features that Customer may elect to activate, the Software does not perform any clinical decision support functions and is intended solely for administrative pharmacy workflow automation.
Confidentiality. Each party (“disclosing party”) may disclose to the other party (“receiving party”) certain nonpublic and proprietary materials and information of the disclosing party (“Confidential Information”). The receiving party shall protect the Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. The receiving party shall not disclose the Confidential Information to any third party without the disclosing party’s prior written consent, except to its own directors, employees, legal and financial advisors, and other agents with a need to know the Confidential Information, and who are subject to confidentiality obligations at least as restrictive as those provided herein. The term “Confidential Information” shall not include any information that (i) is or becomes part of the public domain without breach of this Agreement; (ii) is independently developed by the receiving party without use of or reference to the Confidential Information; (iii) is disclosed to the receiving party by a third party without restriction; or (iv) was in the receiving party’s lawful possession prior to its disclosure by the disclosing party. Notwithstanding the foregoing, the receiving party may disclose the Confidential Information as required by law or court order, provided that the receiving party provides prompt prior written notice to the disclosing party, and discloses only the portion of the Confidential Information that it is advised by counsel is legally required to be disclosed, and uses its reasonable efforts to ensure confidential treatment is afforded the disclosed portion of the Confidential Information. The receiving party agrees that breach of this section would cause disclosing party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the disclosing party will be entitled to seek injunctive relief against such breach or threatened breach.
Warranties.
Mutual Warranty. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
Software Warranty. PharmacyAI warrants that the Software will conform, in material respects, to the Documentation. The “Documentation” means the Software user guides, specifications, help files, and other written materials, as updated from time to time, and sent to or made available to Customer by email, PDF, or other electronic means, including via PharmacyAI’s websites.
DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING. PHARMACYAI DOES NOT WARRANT THAT THE SOFTWARE OR THE SERVICES ARE ACCURATE, COMPLETE OR UNINTERRUPTED, NOR DOES PHARMACYAI WARRANT THAT IT WILL REVIEW ANY CUSTOMER DATA FOR ACCURACY. EXCEPT FOR OPTIONAL FEATURES THAT CUSTOMER MAY ELECT TO ACTIVATE, THE SOFTWARE IS INTENDED SOLELY AS A PHARMACY WORKFLOW AUTOMATION TOOL FOR ADMINISTRATIVE FUNCTIONS AND DOES NOT PROVIDE AND PHARMACYAI EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SOFTWARE PROVIDES CLINICAL DECISION SUPPORT, DRUG UTILIZATION REVIEW, ALLERGY OR INTERACTION CHECKING, THERAPEUTIC JUDGMENT, OR MEDICAL ADVICE. PHARMACYAI SHALL NOT BE LIABLE FOR (I) ANY THIRD-PARTY PRODUCTS, (II) ANY RESTRICTED INFORMATION RECEIVED IN BREACH OF THIS AGREEMENT, (III) ANY ACTS OR OMISSIONS OF CUSTOMER’S AUTHORIZED USERS, OR (IV) ANY CLINICAL, THERAPEUTIC, OR DISPENSING DECISIONS MADE BY CUSTOMER OR ITS PERSONNEL, INCLUDING ANY DECISIONS MADE IN CONNECTION WITH OPTIONAL FEATURES ACTIVATED BY CUSTOMER.
Output. Results and outcomes generated by the automated workflows and other components of the Software are probabilistic and Customer should evaluate such results and outcomes for accuracy as appropriate for Customer’s use case, including by employing human review by a licensed pharmacist for all prescriptions and dispensing decisions. The Software is intended solely to assist with administrative pharmacy workflow functions (except to the extent Customer elects to activate optional features) and does not replace the independent professional judgment of a licensed pharmacist. Customer is solely responsible, and PharmacyAI will have no liability, for all decisions made, advice given, actions taken, and failures to take action based on Customer’s use of the Software or any related results or outcomes, including whether such results and outcomes are suitable for Customer’s use case or for its internal business purposes. Customer acknowledges that: (a) except for optional features that Customer may elect to activate, the Software does not perform drug utilization review, allergy or interaction checking, or any clinical analysis; (b) a licensed pharmacist must independently verify all Software outputs and all prescriptions before dispensing; (c) Customer assumes full responsibility for ensuring compliance with all applicable pharmacy practice laws and regulations; and (d) if Customer elects to activate any optional feature related to drug utilization review or override code entry, Customer assumes full responsibility for the use of such feature, including ensuring appropriate human oversight and compliance with all applicable laws and regulations.
Beta Services. Notwithstanding anything to the contrary, if Customer chooses to use any test, trial or other beta services (“Beta Services”), Customer acknowledges that (a) Customer has the sole discretion whether to use any Beta Services, (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality, (c) Beta Services may not be available or reliable, and (d) PharmacyAI provides Beta Services “as-is” and will have no liability arising out of or in connection with Beta Services. You agree to comply with any additional terms, restrictions, or limitations connected to any Beta Services.
Indemnification.
By PharmacyAI. PharmacyAI shall indemnify, defend and hold Customer harmless from and against all damages, liabilities, costs, and expenses (including reasonable attorney’s fees), whether award against Customer or agreed to in settlement, arising from a third-party claim alleging that (i) PharmacyAI has breached this Agreement, or any applicable laws or regulations, or (ii) the Software or any Services, when used in accordance with this Agreement or its Documentation, infringes any intellectual property right of such third party. If Customer’s use of the Software or Services results (or in PharmacyAI’s opinion is likely to result) in an infringement claim, PharmacyAI may either: (a) substitute functionally similar products or services; (b) procure for Customer the right to continue using the Software or Services; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement, or the applicable Order Form, and refund to Customer any prepaid unused fees for the applicable Software and Services. The foregoing indemnification obligation of PharmacyAI will not apply to the extent the applicable claim is attributable to: (1) the modification of the Software or Services based on Customer’s specifications or requirements or by any party other than PharmacyAI; (2) the combination of the Software or Services with products or processes not provided by PharmacyAI; (3) any use of the Software or Services in non-conformity with this Agreement or with the Documentation; or (4) any action arising as a result of Customer Data, or any deliverables or components not provided by PharmacyAI. This section sets forth Customer’s sole remedy with respect to any claim of intellectual property infringement.
By Customer. Customer will indemnify, defend, and hold harmless PharmacyAI from and against all damages, liabilities, costs, and expenses (including reasonable attorney's fees), whether award against Customer or agreed to in settlement, arising from a third-party claim arising out of or related to (a) Customer Data, including any claims that Customer lacked authority to provide such data to PharmacyAI; (b) Customer’s use of the Software and Services, including any claims arising from Customer’s clinical, therapeutic, or dispensing decisions or Customer’s failure to have a licensed pharmacist independently verify Software outputs; (c) Customer’s breach of this Agreement, any applicable Business Associate Agreement, or any applicable laws or regulations, including HIPAA and state pharmacy practice laws; (d) Customer’s failure to maintain required pharmacy licenses, permits, or registrations; or (e) Customer’s breach of any Third Party Terms applicable to Third Party Products accessed through the Beta Services.
Indemnification Procedures. Each party (“indemnified party”) shall promptly notify the other party (“indemnifying party”) in writing of any claim for which such party believes it is entitled to be indemnified pursuant to this Section, and provide assistance and information reasonably necessary to carry out the indemnifying party’s obligations under this Section. The indemnifying party shall reimburse the indemnified party’s reasonable out-of-pocket expenses as they are incurred in providing such assistance. The indemnified party will have the right, at its option, to participate in the settlement or defense of any claim(s), with its own counsel and at its own expense. The indemnifying party shall not settle any claim that results in the indemnified party’s liability or obligation without the indemnified party’s prior written consent.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY NOR ITS AFFILIATES, LICENSORS OR SUPPLIERS WILL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR (II) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR SERVICE INTERRUPTION, ANY DATA INACCURACY, OR THE COST OF SUBSTITUTE SERVICES (IN EACH CASE WHETHER DIRECT OR INDIRECT), REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER A PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 1 (LICENSE AND RESTRICTIONS), (B) A PARTY’S INDEMNIFICATION OBLIGATIONS, (C) A PARTY’S CONFIDENTIALITY OBLIGATIONS, AND (D) A PARTY’S BREACH OF SECTION 6 (INFORMATION SECURITY AND DATA PRIVACY) OR ANY APPLICABLE BUSINESS ASSOCIATE AGREEMENT (TOGETHER, THE “EXCLUDED CLAIMS”), EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR OTHER LEGAL OR EQUITABLE THEORY WILL NOT EXCEED THE AMOUNT CUSTOMER HAS PAID OR THAT IS PAYABLE FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. NOTWITHSTANDING THE FOREGOING, EACH PARTY’S AGGREGATE LIABILITY FOR ANY EXCLUDED CLAIMS ARISING UNDER (D) ABOVE SHALL NOT EXCEED TWO (2) TIMES THE AMOUNT CUSTOMER HAS PAID OR THAT IS PAYABLE FOR THE SERVICES IN THE TWELVE (12)-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
Disputes; Governing Law.
Informal Resolution. PharmacyAI wants to address Customer's concerns and requests that Customer bring issues that may lead to a dispute to our attention immediately. Before filing a claim, PharmacyAI and Customer agree to try to resolve the dispute by providing notice to the other party and having the appropriate executives attempt to resolve the dispute through communication and discussion. After thirty (30) business days from providing notice, either party may bring a formal proceeding.
Governing Law; Venue. This Agreement will be governed by the law of the State of Delaware, without regard to its conflict of law provisions. The exclusive jurisdiction and venue for any actions will be the state and federal courts located in the State of Delaware, and each Party expressly and irrevocably consents to, and waive any objection to, jurisdiction and venue in such courts.
Attorneys’ Fees. If any action or proceeding relating to this Agreement, or to the use of the Software or related Services, or the enforcement of any provision of this Agreement is brought against any Party hereto, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).
General Provisions.
Marketing. PharmacyAI may use and display Customer’s name, logo, trademarks, and service marks on PharmacyAI’s website and in PharmacyAI’s marketing materials in connection with identify Customer as a customer of PharmacyAI. Upon Customer’s written request, PharmacyAI will promptly remove any such marks from PharmacyAI’s website and, to the extent commercially feasible, PharmacyAI’s marketing materials.
Notices. Any notice or communication required or permitted under this Agreement will be in writing to the Parties at the addresses set forth in this Agreement or on any applicable Order Form, or at such other address as may be given in writing by either Party to the other in accordance with this section, and shall be deemed to have been received by the addressee upon: (a) personal delivery; (b) the second business day after being mailed or couriered; or (c) the day of sending by email. Notices to PharmacyAI shall be to notices@pharmacyai.com or to PinBallCo LLC, 547 Carcaba, Saint Augustine, FL 32084. Notices to Customer will be to the notice email and mailing address as provided on any Order Form or in Customer’s account, or as some other notice email or address provided by Customer.
Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.
Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. There are no third-party beneficiaries under this Agreement.
Export Control. Each party agrees to comply with all export and import laws and regulations, including without limitation, those of the United States, applicable to such party in connection with its respective provision or use of the Service under this Agreement. Without limiting the foregoing, Customer represents and warrants that it: (a) is not listed on, or majority-owned by any entity listed on, any U.S. government list of prohibited or restricted parties; (b) is not located in (or a national of) a country that either is subject to a U.S. government embargo or has been designated by the U.S. government as a “state sponsor of terrorism”; (c) will not (and will not permit any third parties to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction; and (d) will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
Entire Agreement. All attachments and exhibits to the Agreement and Order Forms executed by the parties are hereby incorporated into the Agreement by reference. This Agreement, together with duly executed Order Forms, the Terms of Service and Privacy Policy, and any exhibits attached hereto constitute the entire agreement between Customer and PharmacyAI with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral, including any non-disclosure agreements.
Assignment. Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
Severability. If a court of competent jurisdiction finds any term of this Agreement to be unenforceable, the unenforceable term will be modified to reflect the parties' intention and only to the extent necessary to make the term enforceable. The remaining provisions of the Agreement will remain in effect.
Amendments; Waivers. Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the parties. No failure or delay by either party in exercising a right under this Agreement will constitute a waiver of that right. A waiver of a default is not a waiver of any subsequent default.
Counterparts. This Agreement and any Order Form may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.