License Agreement

This License Agreement (the “Agreement”) is entered into between PharmaGuide Inc. (“PharmaGuide”) and the pharmacy you represent (“Pharmacy”) as identified on our website (“Website”), as of the date you first accept this Agreement (“Effective Date”).
This Agreement represents a legally binding, contractual agreement between Pharmacy and PharmaGuide. By entering this Agreement, you are:
  • (i) representing that you have reached the legal age of majority in your jurisdiction of residence and have all required authority to bind the Pharmacy you represent to this Agreement;
  • (ii)indicating your acceptance of, and agreement to be legally bound by, all of the terms and conditions of this
  • Agreement, both on your own behalf and on behalf of the Pharmacy you represent; and
  • (iii) agreeing to comply with all applicable laws and regulations as they may change from time to time.
IF YOU DO NOT ACCEPT AND AGREE TO BE LEGALLY BOUND BY AND COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO ACCESS OR OTHERWISE USE THE WEBSITE OR THE PHARMAGUIDE SOLUTION

Terms and Conditions

1.Definitions
In this Agreement, the following terms have the following
meanings:
a. “Authorized Users” means pharmacists employed or engaged by Pharmacy and providing patient care from the Licensed Site.
b. “Aggregate Data” has the meaning given in Section 3 (d).
c. “Business Day” means Monday to Friday excluding statutory holidays in the Province of Ontario.
d. “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.
e. “Term” means the term of this Agreement which commences on the Effective Date and terminates on the earlier of: (i) the date on which this Agreement is terminated pursuant to Section 11(b); and. g. “Licensed Site” means the Pharmacy premises identified in your Subscription Information.
h. “License Term” means collectively the Initial Term and any Renewal Terms.
i. “Permitted Purpose” means the use of the PharmaGuide Solution as a tool for assisting pharmacists in: (i) identifying patients who may benefit from pharmaceutical interventions; (ii) recommending appropriate interventions; and (iii) completing required documentation and insurance forms.
j. “PharmaGuideContent” means any content incorporated or included in the PharmaGuide Solution, and will include for greater certainty, Aggregate Data.
k. “PharmaGuide Solution” means PharmaGuide’s PHOX (Pharmacy Hub Operation eXchange) solution used by healthcare providers and all modules,
upgrades, updates and documentation relating thereto.
l. “Renewal Term” means any extensions of the Initial Term as agreed to by the Pharmacy and PharmaGuide pursuant to Section 2.
m. “Subscription Information” means the information you submitted when entering this Agreement.
n.“Subscription Fee” means the fees payable by the Pharmacy to PharmaGuide for the use of the PharmaGuide Solution.
 
2. License
a. PharmaGuide hereby grants Pharmacy a limited, revocable, non-exclusive, non-transferable license for the Authorized Users to install and use the PharmaGuide Solution on the Designated Equipment and for the Permitted Purpose during the License Term. 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 PharmaGuide Solution on any equipment other than the Designated Equipment;
ii.use, copy, modify, download or transfer the PharmaGuide Solution or any component of the PharmaGuide Solution (including the PharmaGuide Content), in whole or in part, except as expressly provided in this Agreement;
iii.reverse engineer, disassemble, decompile, or translate the PharmaGuide Solution or any component of the PharmaGuide Solution (including the PharmaGuide Content); (ii) attempt to derive the source code of the PharmaGuide Solution or any component of the PharmaGuide Solution (including the PharmaGuide Content); (iii) create any derivative work from the
PharmaGuide Solution or any component of the PharmaGuide Solution (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 PharmaGuide Solution or any component of the PharmaGuide Solution (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 PharmaGuide Solution or any component of the PharmaGuide Solution (including the PharmaGuide Content);
vi.use the PharmaGuide Solution or any component of the PharmaGuide Solution (including the PharmaGuide Content) except in accordance with
the terms of this Agreement and all applicable laws; and/or vii.
use the PharmaGuide Solution or any component of the PharmaGuide Solution (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 PharmaGuide Solution 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 PharmaGuide Solution may interact with other software, services and databases licensed or procured
by Pharmacy from third parties; (ii) Pharmacy will be responsible for ensuring that its and the Authorized Users’ use of the PharmaGuide Solution do not
infringe any license, use or access rights applicable to such third party software, services or databases; (iii) that PharmaGuide may anonymize drug sales
information processed by Pharmacy using the PharmaGuide Solution to the point where it cannot be re-identified, to either Pharmacy, or any Authorized
User or patient by a third party and merge such anonymized data with other data (“Aggregate Data”) and use and disclose such Aggregate Data for its business purposes. Pharmacy will obtain any consent and provide any notices that may be necessary for the production, use and disclosure of Aggregate Data as
contemplated herein.
 
3. Ownership
a. PharmaGuide owns and will continue to own all right, title and interest, including all intellectual property rights, in the PharmaGuide Solution and the
PharmaGuide Content.
b. Certain names, graphics, logos, icons, designs, words, titles or phrases contained within the PharmaGuide Solution and/or PharmaGuide Content may constitute trade names or trademarks (collectively “Trademarks”) of PharmaGuide or other entities. All Trademarks 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 PharmaGuide Solution or any component of the PharmaGuide Solution (including the PharmaGuide Content) may be construed as granting, by implication, estoppel, or otherwise, any license to use any Trademark(s).
 
4. Technical Support
During the License Term, PharmaGuide will provide to Authorized Users technical support in connection with the use of the PharmaGuide Solution 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.
 
5. Fees
Pharmacy will not be obligated to pay any Subscription Fees to PharmaGuide for the Initial Term. The Subscription Fees for any renewal term shall be the fees
agreed between the Pharmacy and PharmaGuide for such Renewal Term.
 
6. Disclaimers
a. The PharmaGuide Solution 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 PharmaGuide Solution will increase sales, profits, revenue or goodwill. All such warranties and conditions are expressly disclaimed.
b. The parties agree that the PharmaGuide Solution 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 PharmaGuide Solution. Pharmacy and each Authorized User will be responsible for ensuring that all recommendations made by the PharmaGuide Solution are appropriate for their patients.
c. The PharmaGuide Solution 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 PharmaGuide Solution and the PharmaGuide Content is intended to be asubstitute for professional advice, care, diagnosis, assessment or treatment.
 
7. 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 or 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; (iv) drug sales information processed by Pharmacy using the PharmaGuide Solution; or (v) information for which the Disclosing Party has authorized the relevant disclosure or other use.
c. The PharmaGuide Solution 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 PharmaGuide Solution and the PharmaGuide Content, including the existence of the PharmaGuide Solution, 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 PharmaGuide Solution, 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 PharmaGuide Solution
after each session. Pharmacy will promptly notify PharmaGuide in the event of any actual or suspected unauthorized access of the PharmaGuide Solution 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 PharmaGuide Solution using any Authorized User’s username or password. PharmaGuide will have no liability whatsoever in connection with the
unauthorized use of the username or the 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.
 
8. Indemnity
Pharmacy will indemnify and hold PharmaGuide and its officers, directors, employees, agents and representatives harmless from all claims (including third party claims) and all losses, liabilities, damages, suits, actions, costs, penalties and demands arising out of or relating to Pharmacy’s or any Authorized User’s breach of this Agreement or the use of the PharmaGuide Solution by the Pharmacy or any Authorized User.
 
9.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 PharmaGuide Solution and the PharmaGuide Content will in no event exceed in the aggregate the Subscription Fee paid by Pharmacy to PharmaGuide in the three months period prior to the event giving rise to the claim.
c. This Section 10 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.
 
10.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 3 or Section 8 by Pharmacy or any Authorized User.
c. Upon expiry or termination of this Agreement, Pharmacy will immediately cease using and delete the PharmaGuide Solution and cause the Authorized Users to cease using and delete the PharmaGuide Solution.
 
11.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, and is 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 (or otherwise
accepted) 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 to:
PharmaGuide:
21-55 West Beaver Creek Rd.
Richmond Hill, ON
L4B 1K5
Contact: Faddy Morgan, Chief Operating Officer
 
Pharmacy: At the address and to the contact specified in the Subscription Information, 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 12(i). Any notice delivered in accordance with this Section 12(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. Notwithstanding the foregoing, where this Agreement
provides for an email notice to Pharmacy, the notice will be sent by email to the email address specified in the Subscription Information.
j. Survival. Sections 3b, 4, 6, 7, 8, 9, 10, 11(c) and 12 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 PharmaGuide Solution 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.
TOR_LAW 96262214