Terms & Conditions
These terms and conditions (the “Agreement”) govern your access and use of our website or software services (collectively, the “Services”), which includes any applications or related documentation. By using the Services, you agree to these terms. If you (or the organization through which you have been granted or otherwise obtained access to the Services) have entered into another agreement with us, then the terms of that agreement (the “Additional Agreement”) controls where it conflicts with these terms.
Service PerformanceTo use our Services, you need compatible hardware, software and Internet access (fees may apply). Our Services’ performance may be affected by these factors. We are not responsible for the hardware, software or Internet access that you use to access the Services.
Subscription Rights.Subject to your compliance with these terms, you may access and use the Services.
PrescribeWellness Intellectual Property.We retain all right, title and interest in the Services, including without limitation all software used to provide the Services and all graphics, user interfaces, logos, and trademarks reproduced through the Services. We reserve all rights not granted under these terms.
FeedbackYou have no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). However, if you submit Feedback to us, then you grant us a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferrable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.
Fees and PaymentUnless stated in any Additional Agreement, we will charge you an initial deposit equal to the subscription fee for one month of services. This will be applied to cover the first month of the Services when they commence. At the start of each successive month (calculated from the Commencement Date) and for the duration of your annual contract, we will charge you the monthly rate stated at the time of purchase plus any applicable taxes (such as value added tax (“ VAT ”) when the state rate does not include VAT). We will not refund any fee paid under this Agreement. If you add any additional services after you initially contract with us, we will start billing you for those services at that time in the same manner described above. If the applicable VAT rate (or other included tax or duty) changes during your one-year term, the tax-inclusive price will adjust accordingly.
Taxes and Third-Party FeesYou must pay any applicable taxes, and any applicable third-party fee (including, for example telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees). We are not responsible for these fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses.
Credit Card InformationIf you do not notify us of updates to your payment method, to avoid interruption of your service, we may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
Term.Your subscription to the Services begins on the first day that you are able to access and use the Services (or, in the case of additional services or products, from the date you gain access to those additional services or products) (the “Commencement Date”). Unless otherwise provided for by any Additional Agreement, the initial term for your subscription lasts for one year from the Commencement Date. Your subscription for the Services will automatically renew for one additional year unless terminated in any manner outlined below.
Termination by YouYou may terminate your subscription to the Services or any individual service or product by giving us notice that you are terminating the subscription at least 60 days before the end of any existing term for the Services or individual service or product.
Termination by UsWe may terminate your right to access and use the Services if: (i) you fail pay us on time for the fees or applicable taxes for the Services; (ii) any other Additional Agreement that provides for your access and use of the Services expires or is terminated; (iii) we are required by law to do so; or (iv) you violate any terms of this Agreement (or act in a manner that shows you to not intend to, or unable to, comply with these terms).
Effect of Termination; SurvivalThe expiration or termination of your subscription to the Services does not relieve you of any obligation to pay any outstanding fees. Upon termination or expiration, you will no longer have access and use to the Services and you must discontinue using any of our confidential information. Your obligation to indemnify us, protect confidential information, all warranty disclaimers, limitations of liabilities, dispute resolution, venue and governing law provisions will continue in effect after the expiration or termination of this Agreement.
Acceptable Use.You agree not to: (a) use the Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Services; (b) provide your passwords or other log-in information to any third party; (c) share non-public features or content of the Services with any third party; or (d) access the Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services. In the event that we suspect any violation of these requirements, we may suspend your access to the Services without advanced notice, in addition to any other remedies we may have. We are not required to take any action for suspected violations, but may take any action that we see fit.
Unauthorized Access.You agree take reasonable steps to prevent unauthorized access to the Services, including protecting your passwords and log-in information. If you suspect or know of any unauthorized access or use of the Services, you agree to notify use immediately so that we may take action to stop any security breach. You are responsible and liable for any use of the Services through your account whether authorized or unauthorized.
Outbound Communications.You are not allowed to use the outbound communication features (including voice and text communications) in the Services for the advertisement, marketing or sale of products or services. You agree to take reasonable steps, independent of PrescribeWellness, to stay informed as to applicable state and federal laws as it applies to the use of the outbound communication features of the Services. You are solely responsible for your use of the outbound communication features. You warrant that you have received permission from your customers to send voice and text communications to mobile devices. You affirm that you have not purchased and are not using a customer call list to send outbound communications through the Services.
Compliance with Laws.In using the Services, you warrant and agree to comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information, protected health information and other laws applicable to the protection or communication of your data or information.
Medicare Plan Finder Tool Service Terms.In accepting our Medicare Plan Finder Tool subscription, you acknowledge that you are familiar with the requirements stated in 42 C.F.R. §§ 422 et seq. (Medicare Advantage Program) and 42 C.F.R. §§ 423 et seq. (Voluntary Medicare Prescription Drug Benefit), including the limitations on the marketing to or steering your customers to particular Medicare Advantage or prescription drug plans. You agree to keep informed of and abide by all relevant federal and state regulations and all marketing guidelines established by the Centers for Medicare and Medicaid Services (“CMS”).
Indemnification.You agree to indemnify, defend and hold us harmless (including our directors, officers, employees, agents and affiliates) from and against any and all claims, liabilities, losses or damages (including reasonable attorney fees, expert witness fees, expenses and costs of settlement) arising out of or with respect to your use of the Services or your violation of any term of this Agreement.
Data.Except as stated in any Additional Agreement, you understand and agree that:
Data AuthorizationYou authorize us to receive your data from your practice management system or any third party that you have authorized to gather, collect, store or otherwise maintain your data, including protected health information.
Data SharingIf your access or use of the Services is granted or otherwise obtained through any Additional Agreement (for example, through an agreement with a group purchasing organization or practice management system/service provider or as part of a technology rebate program), you authorize us to share your data, subject to appropriate confidentiality restriction, with such third party in order to assist your participation in the program through which the Services are provided.
Data AccuracyWe have no responsibility or liability for the accuracy of data or information sent to our database for your use of the Services, which includes data provided by your directly or data we receive indirectly from third parties that you have authorized to send us data.
Aggregate and Anonymized DataWe may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in our sole discretion, and make use of any derivative works that we create from the Aggregate Data. “Aggregate Data” is data that we have removed any personally identifiable information, including your name and address.
Risk of ExposureYou recognize that hosting data remotely involves risks of unauthorized disclosure or exposure and that, in accessing and using the Service, you assume such risks. We offer no representation, warranty, or guarantee that your data or information will not be exposed or disclosed through errors or the actions of third parties
System Maintenance.We may interrupt the Services periodically to perform maintenance. We will use reasonable efforts to notify you prior to the performance of any maintenance. To the extent possible, we will schedule maintenance during non-peak hours (between 10:00 PM and 4:00 AM PST). There may be times where we have to perform emergency maintenance without notice and during peak usage times. You may not treat any interruption for maintenance as our failure to perform under this Agreement.
Definition of Confidential Information“Confidential Information” includes documentation or training materials provided through PrescribeWellness University, features, functionality or screen shots of the Services, any document we may mark as “Confidential,” information we orally designate as “Confidential” at the time of disclosure, and any other nonpublic, sensitive information that we may disclose to you, whether or not marked or designated as “Confidential.” Information that otherwise would be deemed Confidential Information but (a) is generally and legitimately available to the public through no fault or breach of yours, (b) is generally made available to the public, (c) is independently developed by you without the use of any Confidential Information, (d) was rightfully obtained from a third party who had the right to transfer or disclose it to you without limitation will not be considered Confidential Information under this Agreement. All Confidential Information remains our sole property and you have no implied licenses or other rights in the Confidential Information not specified in this Agreement.
Nonuse and Nondisclosure of Confidential InformationExcept as expressly permitted, you agree that you will not disclose, publish, or otherwise disseminate any Confidential Information to anyone other than individuals who are enrolled in the same Services, or as otherwise expressly permitted or agreed to by us in writing. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information, including preventing access to or display of the Services to third parties. You agree to use the Confidential Information solely for the permitted uses as set forth in this Agreement. You agree not to use Confidential Information otherwise for your own or any third party’s benefit without our prior written approval. You hereby acknowledge that unauthorized disclosure or use of Confidential Information could cause us irreparable harm and significant injury that may be difficult to ascertain. Accordingly, you agree that we will have the right to seek immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies we may have.
Disclaimers of Warranties.
- Unless stated in any Additional Agreement, the Services and Software are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties express or implied, including the implied warranties of non-infringement, merchantability, course of dealing, course of performance, usage of trade and fitness for a particular purpose. We further disclaim any warranty that (i) the Services will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (ii) the results that may be obtained from the use of the Services will be effective, accurate, or reliable; (iii) the quality of the Services will meet your expectations; or that (iv) any errors or defects in the Services will be corrected.
- We specifically disclaim any liability for any actions resulting from your use of any Services. You may use and access the Services at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use and access of any Service.
Limitation of Liability.
- Unless stated in any Additional Agreement, we are not liable to you or anyone else for: (i) any loss of use, data, goodwill, or profits, whether or not foreseeable; and (ii) any special, incidental, indirect, consequential, or punitive damages whatsoever (even if we have been advised of the possibility of these damages), including those (A) resulting from loss of use, data, or profits, whether or not foreseeable, (B) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (C) arising from any other claim arising out of or in connection with your use of or access to the Services. Nothing in these terms limits or excludes our liability for gross negligence, for our (or our employees’) intentional misconduct, or for death or personal injury.
- Our total liability in any matter arising out of or related to these terms is limited to the aggregate amount that you paid for access to the Service during the six-month period preceding the event giving rise to the liability. This limitation will apply even if we have been advised of the possibility of the liability exceeding the amount and notwithstanding any failure of essential purpose of any limited remedy.
- The limitations and exclusions in this section apply to the maximum extent permitted by law.
ProcessFor any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, you and PrescribeWellness must resolve any claims relating to these terms and the Services through final and binding arbitration, except that you may assert claims in small claims court if your claims qualify. This includes claims about the validity, applicability or existence of this Agreement.
RulesThe American Arbitration Association will administrate the arbitration in Miami-Dade County, Florida pursuant to its rules. There will be one arbitrator that both you and PrescribeWellness select. Judgment upon the award rendered may be entered and will be enforceable in any court of competent jurisdiction having jurisdiction over the parties.
No Class ActionsYou may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.
Injunctive ReliefNotwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Services in violation of these terms you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
Choice of Law & JurisdictionThis Agreement will be governed solely by the internal laws of the State of Florida without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; or (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods.
Construction.You agree that the terms of this Agreement result from negotiations between you and PrescribeWellness. This Agreement will not be construed in favor of or against you or PrescribeWellness by reason of authorship.
Technology Export.You will not: (a) permit any third party to access or use the Services in violation of any U.S. law or regulation; or (b) export any software that we provide or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, you will not permit any third party to access or use the Services in, or export such software to, a country subject to a United States embargo (presently, Cuba, Iran, North Korea, Sudan, and Syria).
Notice to PrescribeWellnessYou may send the notices to us to at the following address: Prescribe Wellness, LLC, 9701 Jeronimo Road, Suite 300, Irvine, CA 92618, Attention: General Counsel.
Notice to YouWe may notify you by email, postal mail, postings within the Services, or other legally acceptable means.
Entire AgreementThese terms constitute the entire agreement between you and us regarding your use of the Services and supersede any prior agreements between you and us relating to the Services.
Non-AssignmentYou may not assign or otherwise transfer these terms or your rights and obligations under these terms, in whole or in part, without our written consent and any such attempt will be void. We may transfer our rights under these terms to a third party.
SeverabilityIf a particular term is not enforceable, the unenforceability of that term will not affect any other terms.
Statutory Exemptions for Public Institutions.If you are a qualified public educational or government institution and any part of this Agreement, such as, by way of example, all or part of the indemnification section, is invalid or unenforceable against you because of applicable state or federal law, then that portion shall be deemed invalid or unenforceable, as the case may be, and instead construed in a manner most consistent with applicable governing law. If Florida law is precluded, this Agreement shall be construed under the laws of the state in which your public educational or government institution is located.
No Waiver.Our failure to enforce or exercise any of these terms is not a waiver of that section.
ModificationsWe may modify these terms or any additional terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly. We will post notice of modifications to these terms on this page. We will post notice of modified or additional terms in the applicable Service. By continuing to use or access the Services after the revisions come into effect, you agree to be bound by the revised terms.