BACKGROUND:
By logging in, you agree to the following terms and conditions:
1. Definitions
In this Agreement, the following terms have the following meanings:
a. “Authorized Users” means pharmacists, staff, consultants or any other person employed or engaged by the Pharmacy who has access to PHOX Cloud and its modules.
b. “Business Day” means Monday to Friday excluding statutory holidays in the Province of Ontario.
c. “Designated Equipment” means desktops: (i) owned or operated by the Pharmacy; (ii) located at the Licensed Site; and (ii) on which the Pharmacy’s billing software is installed.
d. “Licensed Site” means the Pharmacy premises identified above.
e. “License Term” means the term of this Agreement identified above.
f. “Permitted Purpose” means the use of the PHOX - Pharmaceutical Hub Operations eXchange as a tool for assisting pharmacists in: (i) identifying patients who may benefit from pharmaceutical interventions; (ii) recommending appropriate interventions; (iii) completing required documentation and insurance forms; (iv) monitoring business analytics; and (v) supporting compliance with regulatory bodies .
g. “PharmaGuide Content” means any content incorporated or included in the PHOX.
h. “PHOX” means PHOX, PHOX Cloud, PHOX Dash, PHOX2Ship, PHOXConceirge and PHOX Wiki - a platform which was developed for use by pharmacists and all modules, upgrades, updates and documentation relating thereto. Also known as “PHOX” (Pharmaceutical Hub Operations Exchange)
2. License
a. PharmaGuide hereby grants Pharmacy a limited, non-exclusive, non-transferable license for the Authorized Users to install and use the PHOXon the Designated Equipment and for the Permitted Purpose. All rights not expressly granted in this Agreement are hereby reserved by PharmaGuide.
b. Pharmacy will not, and will cause the Authorized Users not to:
i. install and use the PHOX on any equipment other than the Designated Equipment;
ii. use, copy, modify, download or transfer the PHOX or any component of the PHOX (including the PharmaGuide Content), in whole or in part, except as expressly provided in this Agreement;
iii. reverse engineer, disassemble, decompile, or translate the PHOX or any component of the PHOX (including the PharmaGuide Content); (ii) attempt to derive the source code of the PHOX or any component of the PHOX (including the PharmaGuide Content); (iii) create any derivative work from the PHOX or any component of the PHOX (including the PharmaGuide Content); and/or (iv) authorize or assist any third party to do any of the foregoing;
iv. rent, lease, loan, resell, or otherwise distribute the PHOX or any component of the PHOX (including the PharmaGuide Content);
v. remove or alter any proprietary notice or legend regarding PharmaGuide’s, or any third party’s, proprietary rights in the PHOX or any component of the PHOX (including the PharmaGuide Content);
vi. use the PHOX or any component of the PHOX (including the PharmaGuide Content) except in accordance with the terms of this Agreement and all applicable laws; and/or
vii. use the PHOX or any component of the PHOX (including the PharmaGuide Content): (i) to defraud any third party; (ii) to distribute unlawful materials or information; and/or (iii) to disseminate or encourage conduct that could constitute a criminal offence or give rise to any form of liability.
c. PharmaGuide will install the PHOX on the Designated Equipment and Pharmacy will provide access to such Designated Equipment to PharmaGuide in order to complete such installation.
d. Pharmacy acknowledges and agrees that: (i) the PHOX may interact with other software, services and databases licensed or procured by Pharmacy from third parties; and (ii) Pharmacy will be responsible for ensuring that its and the Authorized Users’ use of the PHOX do not infringe any license, use or access rights applicable to such third party software, services or databases.
e. Pharmacy acknowledges that data relating to dispensing trends, inventory, and other non-patient specific data that is completely de-identified may be collected and/or used to improve the platform.
3. Ownership
a. PharmaGuide owns and will continue to own all right, title and interest, including all intellectual property rights, in the PHOX and the PharmaGuide Content.
b. Certain names, graphics, logos, icons, designs, words, titles or phrases contained within the PHOX and/or PharmaGuide Content may constitute trade names or trademarks (collectively “Trademarks”) of PharmaGuide or other entities. All Trade-marks are and will remain the sole and exclusive property of PharmaGuide and their respective owner(s). Any use of such Trademarks, except as expressly provided for in this Agreement, without the express written consent of PharmaGuide or the applicable owner is strictly prohibited. Nothing contained herein or on the PHOX or any component of the PHOX (including the PharmaGuide Content) may be construed as granting, by implication, estoppel, or otherwise, any license to use any Trademark(s).
4. Data Storage
PharmaGuide Inc will ensure that PHOX (including all servers, and backups) is fully hosted and managed on Canadian servers by reputable and trusted partners. PHOX is currently being fully managed by the Enterprise Google Cloud Platform - North America-northeast1. PharmaGuide Inc. shall provide notification to all users 30 days prior to changing this for any reason.
5. Security and Access
PHOX is fully managed by Google Cloud Platform and undergoes continuous vulnerability and penetration testing. Access is controlled and authenticated through Auth0 which logs access and use to ensure HIPAA and PHIPA conmpiance. PharmaGuide Inc. will provide at least 30 days of advanced notice if there is any planned change to this.
6. Destruction of Data
Once termination of service has been confirmed, the data will undergo a deletion process which will irretrievably remove the data from the application and storage layers from both active and backup storage systems.
Logical deletion occurs in phases, beginning with marking the data for deletion in active storage systems immediately and isolating the data from ordinary processing at the application layer. Successive compaction and mark-and-sweep deletion cycles in storage layers serve to overwrite the deleted data over time. Cryptographic erasure is also used to render the deleted data unrecoverable. Finally, backup systems containing snapshots of active systems are retired on a standard cycle. A certificate of data destruction will be provided.
7. Technical Support
During the License Term, PharmaGuide will provide to Authorized Users technical support in connection with the use of the PHOX from 10AM to 5PM EST on Business Days at the support contact information provided by PharmaGuide to Pharmacy. The scope of such technical support will be communicated by PharmaGuide to Pharmacy from time to time.
8. Consideration
In consideration for the rights granted by PharmaGuide to Pharmacy under this Agreement, Pharmacy agrees to comply with the terms and conditions of this Agreement and to provide PharmaGuide with feedback and input requested by PharmaGuide from time to time in order to improve, enhance or otherwise modify the PHOX and/or to expand its use to other pharmacies across Canada.
9. Disclaimers
a. The PHOX and any services provided by PharmaGuide relating thereto will be provided WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND whether legal, express or implied, arising from statute, course of dealing, usage of trade or otherwise, including warranties and conditions of merchantability, quality or fitness for a particular purpose, and non-infringement of third party rights, and any warranties or conditions that the use of the PHOX will increase sales, profits, revenue or goodwill. All such warranties and conditions are expressly disclaimed.
b. The parties agree that the PHOX will be used by Pharmacy and its Authorized Users as a tool to assist them for the Permitted Purpose and will not be a substitute for the professional judgment and obligations of any pharmacist. It will be the responsibility of the Pharmacy and Authorized Users, and at their discretion and judgment, to review all recommendations suggested by the PHOX. Pharmacy and each Authorized User will be responsible for ensuring that all recommendations made by the PHOX are appropriate for their patients and/or business.
c. The PHOX and the PharmaGuide Content should not be construed as the giving of advice or the making of a recommendation and it should not be relied on as the basis for any decision or action. Nothing in the PHOX and the PharmaGuide Content is intended to be a substitute for professional advice, care, diagnosis, assessment or treatment.
d. Modules included in PHOX may be sponsored or discounted by PharmaGuide Inc, pharmaceutical companies, buying groups, pharmacy chains, research centers, government agencies, or other third party companies. “Module Sponsors” may have access to de-identified data for the purpose of program improvement. All access to data is subject to PHIPA regulations. The purpose of these modules is to assist healthcare providers and patients by investigating their reimbursement options for treatment, providing financial support if applicable, and supporting healthcare providers in the administration of the program and monitoring of the patients conditions. It is not intended to provide medical advice or medical diagnoses, and all patients are to be assessed by their healthcare providers if there are any health concerns.
10. Confidentiality
a. Each party agrees that any information which is either confidential or proprietary in nature including all information relating to a party's customers, suppliers, technical, financial, or business information, disclosed by or on behalf of a party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with the performance of this Agreement is confidential (“Confidential Information”) and therefore the Receiving Party agrees that it will not use the Confidential Information of the Disclosing Party for any purpose other than for the purpose of performing its obligations and exercising its rights under this Agreement, or reproduce or disclose, in whole or in part, the Confidential Information of the Disclosing Party to any third party, except to its officers, directors and employees who need to know the Confidential Information and who will have undertaken to treat the Confidential Information in accordance with the provisions of this Section. The Receiving Party agrees that it will safeguard the Confidential Information of the Disclosing Party from disclosure in accordance with this Agreement, using no less than a reasonable standard of care. In the event that the Receiving Party becomes compelled by law or order of court or administrative body to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will be entitled to disclose such Confidential Information, provided that (i) the Receiving Party provides the Disclosing Party with prompt prior written notice of such requirements to allow the Disclosing Party to take any necessary action to safeguard the Confidential Information; and (ii) if required to disclose, the Receiving Party will furnish only that portion of the Disclosing Party’s Confidential Information which is legally required and will exercise its best efforts to obtain assurances that the Confidential Information will be treated in confidence.
b. Notwithstanding anything to the contrary herein, the following will not constitute "Confidential Information" for the purposes of this Agreement: (i) information that the Receiving Party can show, by documented evidence, was known by it prior to the disclosure thereof to it or independently developed by it without using the Confidential Information; (ii) information that is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by the Receiving Party in breach of this Agreement; (iii) information that is or becomes available to Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not known by the Receiving Party to be subject to any prohibition against transmitting the information to the Receiving Party; or (iv) information for which the Disclosing Party has authorized the relevant disclosure or other use.
c. The PHOX and the PharmaGuide Content are the Confidential Information of PharmaGuide and the Pharmacy will not, and will cause the Authorized Users not to, without the prior written consent of PharmaGuide: (i) disclose any information regarding the PHOX and the PharmaGuide Content, including the existence of the PHOX, to any third party (whether any pharmaceutical companies, physicians or pharmacies, technology providers or other third parties); and (ii) use, reverse engineer, reproduce, copy or replicate the PHOX, the PharmaGuide Content or any aspect thereof or attempt to do any of the foregoing.
d. Pharmacy will ensure that each Authorized User protects the security of his or her user name and password and logs out of the PHOX after each session. Pharmacy will promptly notify PharmaGuide in the event of any actual or suspected unauthorized access of the PHOX or if any user name or password have been compromised or are suspected to have been compromised. Pharmacy will be responsible for any unauthorized access to the PHOX using any Authorized User’s username or password.
e. Pharmacy will in no event disclose or make available any personal information of any patient or other individuals to PharmaGuide without the prior consent of such individuals. Pharmacy will be responsible for compliance, and will comply, with all applicable laws relating to such disclosure or access.
11. Indemnity
Pharmacy will indemnify and hold PharmaGuide and its officers, directors, employees, agents and representatives harmless from all third party claims and any losses, liabilities, damages, suits, actions, costs, penalties and demands relating thereto arising out of or relating to Pharmacy’s or any Authorized User’s breach of this Agreement.
12. Limitation of Liability
a. In no event will PharmaGuide be liable to Pharmacy, Authorized Users or any third party for any indirect, special, consequential and punitive damages whatsoever, including for loss of profit, loss of savings, loss of data, loss of revenue, and failure to recognize anticipated revenues.
b. PharmaGuide’s aggregate liability arising out of or relating to this Agreement or the PHOX and the PharmaGuide Content will in no event exceed the amount paid by the Client to PharmaGuide Inc. over the most recent 6 months..
c. This Section 7 will apply regardless of the course of action, whether in tort (including negligence), contract or otherwise, and even if PharmaGuide has been advised of the possibility of such damages.
13. Term and Termination
a. This Agreement will be effective as of the Effective Date will continue for the License Term.
b. Either party may terminate this Agreement in the event of a material breach of this Agreement by the other party which has not been cured within 30 days of notice thereof by the non-breaching party to the breaching party, provided that PharmaGuide may terminate this Agreement immediately by notice thereof to Pharmacy in the event of a breach of Section 2 or Section 7 by Pharmacy or any Authorized User.
c. Upon expiry or termination of this Agreement, Pharmacy will immediately cease using and delete the PHOX and cause the Authorized Users to cease using and delete the PHOX.
d. Pharmacy agrees to continue to abide by the terms and conditions outlined in Section 2 for 5 years after the expiry or termination of this Agreement.
e. Upon expiry or termination of this Agreement PharmaGuide Inc. will destroy/sanitize any related data once the retention period has ended
14. General
a. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no representations, warranties or other agreements between the parties.
b. Governing Law. This Agreement is governed by, andis to be construed and interpreted in accordance with, the laws of the Province of Ontario and the laws of Canada applicable therein.
c. Interpretation. In this Agreement, words signifying the singular number include the plural and vice versa, and words signifying gender include all genders. Every use of the words "including" or "includes" in this Agreement is to be construed as meaning "including, without limitation" or "includes, without limitation", respectively.
d. Amendment. No amendment or modification of this Agreement or any Section of this Agreement is binding unless it is in writing and executed by each party.
e. Waiver. No waiver of this Agreement or any Section of this Agreement is binding unless it is in writing and executed by the party to be bound. No waiver of, failure to exercise, or delay in exercising, any Section of this Agreement constitutes a waiver of any other Section, whether or not similar, nor does any waiver constitute a continuing waiver unless otherwise expressly provided.
f. Severability. If any Section of this Agreement, in whole or in part, is or becomes illegal, invalid, void, voidable or unenforceable in any jurisdiction by any court of competent jurisdiction, the illegality, invalidity or unenforceability of that Section, in whole or in part, will not affect the legality, validity or enforceability of the remaining Sections of this Agreement, in whole or in part; or the legality, validity or enforceability of that Section, in whole or in part, in any other jurisdiction.
g. Relationship of the Parties. The parties are independent contractors and nothing herein will be construed to and does not create a relationship of agency, partnership, employment or joint venture. Each party will not have the authority to bind the other party without the other party’s prior written consent.
h. Assignment. Neither this Agreement nor any right or obligation under this Agreement may be assigned by Pharmacy without the prior written consent of PharmaGuide.
i. Notice. All notices under this Agreement will be in writing and delivered personally or by courier, or sent by prepaid registered mail, to:
PharmaGuide:
14-44 East Beaver Creek Rd.
Richmond Hill, Ontario, L4B 1G8
Contact: Faddy Morgan - Chief Operating Officer
Pharmacy: At the address and to the contact specified on the cover page
or at any other address as a party may at any time advise the other party by notice given or made in accordance with this Section 11(i). Any notice delivered in accordance with this Section 11(i) to the party to whom it is addressed will be deemed to have been given or made and received on the day it is delivered at that party’s address, provided that if that day is not a Business Day then the notice will be deemed to have been given or made and received on the next business day. Any notice sent by prepaid registered mail will be deemed to have been given or made and received on the fifth Business Day after which it is mailed. If a strike or lockout of postal employees is then in effect, or generally known to be impending, every notice must be delivered personally or by courier.
j. Survival. Sections 2b, 3, 5, 6, 7, 8, 9, 10(c) and 11 will survive the termination or expiry of this Agreement.
k. Audit. During the License Term and thereafter, PharmaGuide will have the right to audit during business hours Pharmacy’s use of the PHOX and compliance with this Agreement.
l. Publicity. The Pharmacy hereby authorizes PharmaGuide to use the name and logo of the Pharmacy in marketing materials and presentations, and name the Pharmacy as a client on PharmaGuide’s website.
m. Counterpart. This Agreement may be executed and delivered by the parties in one or more counterparts, each of which will be an original and those counterparts will together constitute one and the same instrument. A document signed and transmitted electronically by facsimile or email is to be treated as an original and shall have the same binding effect as an original signature on an original document.
Disclaimer for all services:
Please note that we cannot guarantee any outcomes or results to investigations. complaints, or regulatory requests. Our role is to work with you (and your team) to ensure that your side of the story is communicated clearly. We are not a replacement for legal counsel and take no responsibility for case outcomes in any manner. Any opinions or thoughts discussed are merely that and should not be considered as "advice" or "counsel". It is your responsibility to provide all materials, review and finalize any and all documents, ensure that they are accurate and true, and that you are fully satisfied with them prior to you submitting them. For clarity, the client shall maintain full responsibility for all submissions. PharmaGuide, its directors, employees, shareholders, partners, and affiliates will in no way be held responsible for any outcome(s) in any manner.
All services are fully confidential except as required by law or court order.
