This Pharmacy Partner Agreement is effective as of the pharmacy application (the “Application”) date (the “Effective Date”) by and between Pharmacy indicated on the Application (“Pharmacy”), with a principal address as indicated on Application, and PointClickCare Technologies USA Corp. (“PointClickCare”), a Delaware corporation with a principal address of 5570 Explorer Drive, Mississauga, Ontario L4W 0C4 (the Pharmacy Application and this Master Agreement are together, this “Agreement”).
- Pharmacy provides pharmaceuticals and related ancillary products and services to long-term care facilities, such as skilled nursing facilities, assisted living facilities, group homes, correctional facilities and others and their residents (individually “Facility” and collectively “Facilities”);
- PointClickCare licenses the QuickMAR software together with any technical specifications, documentation, web-based platform, database and related services that enables Facilities to manage the medications and the care of their residents (“QuickMAR”);
- PointClickCare licenses the QuickMAR RX software together with any technical specifications, documentation, web-based platform, database and related services to Pharmacy (“QuickMAR RX”) to enable Pharmacy to configure and manage the interaction of QuickMAR accounts used by their integrated Facility customers (“Integrated Facility”);
- QuickMAR RX uses a configurable interface (“Interface”) to connect the Pharmacy’s dispensing system and medication records to QuickMAR and establish a bi-directional exchange of data (“Records”) between both systems;
- QuickMAR, QuickMAR RX, the technical specification and documentation (“Documentation”) are collectively referred to as the “Software” and the Software, Interface and Records are collectively referred to as the “Services”;
- Pharmacy desires to license and distribute QuickMAR to Integrated Facilities for each of their use, respectively, and utilize the Services subject to the terms herein;
- In order for Pharmacy and each Integrated Facility to download, install and use the Software, each of Pharmacy and Integrated Facility, must separately click to accept a click-wrap end user license agreement embedded in the Software (the “EULA”) which is incorporated herein by reference and forms part of this Agreement;
- In some instances, PointClickCare may require an Integrated Facility to accept PointClickCare’s terms and conditions and enter into an Agreement with PointClickCare independent of Pharmacy;
- As a prerequisite for Pharmacy to utilize the license granted by the EULA (“License”) and get access to the Services, Pharmacy must have an active account (“Pharmacy Account”) established in the Services database.
NOW THEREFORE, the parties hereto agree as follows:
- Services. The Services utilize a bi-directional Interface whereby Pharmacy will make the records in the Pharmacy’s dispensing software (“Dispensing Software Records”) accessible to PointClickCare through the Interface and PointClickCare shall regularly, and as determined by the Pharmacy, extract such Dispensing Software Records from the Interface and transfer them to the applicable Integrated Facility for utilization by the Integrated Facility. PointClickCare may make certain information it receives from the Integrated Facility available to Pharmacy through the Interface, as agreed to by the parties, including, but not limited to, notifications of new prescriptions, census information for the Integrated Facilities, and diagnosis information.
- Support. During the Term of this Agreement, PointClickCare shall provide reasonable telephone and e-mail maintenance and support services to Pharmacy and Integrated Facilities, per PointClickCare’s standard support policies and procedures. In the event Pharmacy or Integrated Facility require on-site maintenance or support, PointClickCare may provide such services for a cost based on estimates developed by PointClickCare’s personnel and approved by Pharmacy and/or Facility.
- Data Ownership. Pharmacy owns the Dispensing Software Records. Notwithstanding the foregoing, Pharmacy acknowledges and agrees that each Integrated Facility is the owner of the content of its data in PointClickCare’s Services and records even if the content was contributed to or created by Pharmacy through the Services. For clarity, any Integrated Facility data that is transferred through the Services by Pharmacy or Integrated Facility or entered directly by Pharmacy staff in relation thereto including within Dispensing Software Records, becomes part of Integrated Facility’s data once the data is transferred to the Services (“Integrated Facility Data”). Upon any Integrated Facility termination of Services, Pharmacy may no longer have access to such Integrated Facility Data other than from its own Dispensing Software Records and any archived records Pharmacy may retain for its record retention purposes outside of the QuickMAR system. Pharmacy is responsible for ensuring it retains its records relating to the Services prior to any such termination in accordance with any terms it may have with any such Integrated Facility. Pharmacy shall acquire no right, title, or interest in PointClickCare’s proprietary format or display of the Records in the Software. In the event an Integrated Facility exits its relationship with Pharmacy and continues to use the Services independent of Pharmacy or with another pharmacy, PointClickCare may combine current and historical Integrated Facility Data into a single active account to ensure continuity of care to residents within Facility provided that the Facility requests such combination.
- Fees and Payment Terms.
- Pharmacy Start-up Fees. Each Pharmacy location that requires an active Interface with the Software shall pay an initial start-up fee at the then-current rates set forth in the fee schedule published on the QuickMAR/PointClickCare website or as otherwise specified in a Quote/Order Form.
- License and Services Fees. PointClickCare will provide a consolidated invoice to Pharmacy for the usage of the Services by Pharmacy and Integrated Facilities. The monthly fee for the license granted by the EULA and the Services (the “Fees”) shall be calculated by multiplying the number of residents who were active at any point during the billing period in the Services database for each Integrated Facility, times the monthly fee per resident. The fee per resident will be calculated by matching the total resident volume in the Services across all Integrated Facilities on the pharmacy’s account to the corresponding volume tier in the then current fee schedule published on the QuickMAR/PointClickCare website or as otherwise specified in a Quote/Order Form. PointClickCare may increase Fees no more frequently than once annually upon sixty (60) days’ notice to Pharmacy.
- Professional Services. Pharmacy or Facility may purchase additional professional services, as needed, at the then-current rates set forth in the fee schedules published on the QuickMAR/PointClickCare website plus, if applicable, reasonable out of pocket expenses, including travel, accommodation and other related expenses incurred in the performance by PointClickCare of on-site services. Professional Service include but are not limited to:
- Conversion of Pharmacy dispensing software (conversion occurs if Pharmacy changes to a different pharmacy dispensing software following delivery of initial start-up services);
- Pharmacy transfer (a transfer occurs when an Integrated Facility moves to Pharmacy from an existing PointClickCare pharmacy partner and is already an active user of the Services);
- Facility Implementation and training fees; and
- On-site maintenance and support.
- Taxes. The Fees exclude federal and state or provincial sales, excise, use, goods and services and value added or similar taxes (“Taxes”). Pharmacy acknowledges that it shall be responsible for the payment of any such Taxes as may be applicable and as invoiced by PointClickCare.
- Payment Terms. PointClickCare shall submit a detailed invoice to Pharmacy for all Fees and related charges within ten (10) days after the end of each month. Pharmacy shall remit payment by automatic clearing house or other form of payment acceptable to PointClickCare within thirty (30) days of the invoice date. PointClickCare may charge interest on overdue amounts at the rate of 1.5% per month from the payment due date until paid.
- Representations and Warranties.
a. Corporate Authority. Each party warrants that it has full power and authority to enter into and perform this Agreement, and the person executing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.
b. Warranties Made by Pharmacy. Pharmacy will not make or publish any representations, warranties, or guarantees on behalf of PointClickCare or its suppliers concerning the Software that are inconsistent with the express warranties contained in the EULA concerning the Software.
- Representations and Warranties.
a. Compliance with Laws and Regulations. Each of PointClickCare and Pharmacy agrees that in the performance of this Agreement, it will comply with all applicable laws, statutes, rules, regulations or orders of the United States government or of any state or political subdivision thereof.
b. HIPAA Compliance. Each of PointClickCare and Pharmacy hereby covenants and agrees that in performing its obligations under this Agreement, it will comply in all material respects with the Health Insurance Portability and Accountability Act and its implementing regulations (including, without limitation, the privacy regulations adopted at 45 C.F.R. Parts 160 and 164 and the code set regulations adopted at 45 C.F.R. Parts 160 and 162), as they may be amended from time to time.
- Term and Termination.
- Term. The term of this Agreement shall begin on the Effective Date and continue for one (1) year and shall automatically renew thereafter for successive one-year periods (the “Term”) unless either party provides written notice to the other of its intent to terminate in accordance with this Agreement.
- Termination for Cause. Either party may terminate this Agreement for cause: (i) upon 30 days’ prior written notice to other party of a material breach, if such breach remains uncured at the expiration of such notice period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
- Termination for Convenience by PointClickCare. PointClickCare shall have the right to terminate this Agreement at any time by giving ninety (90) days’ prior written notice to Pharmacy.
- Termination for Convenience by Pharmacy. Pharmacy may terminate this Agreement upon sixty (60) days written notice to PointClickCare provided that Pharmacy shall pay the full monthly fee for the final calendar month during which Pharmacy used the Services. Pharmacy acknowledges and agrees that termination of this Agreement by Pharmacy does not preclude any Integrated Facility from continuing to independently utilize PointClickCare’s Services subject to terms to be agreed upon between Integrated Facility and PointClickCare.
- Termination for Convenience by Pharmacy of Individual Facility License. Pharmacy may at any time terminate its use of the License with respect to any Integrated Facility (“Individual License Termination”) by (i) giving not less than thirty (30) business days’ notice to PointClickCare;(ii) advising the Integrated Facility to be terminated (“Terminated Facility”) that Terminated Facility may either: (a) continue to independently utilize the Services provided that Terminated Facility assumes payment for all applicable Fees and completes any requisite documentation; or (b) integrate with a new approved PointClickCare pharmacy partner. After an Individual License Termination, the License shall no longer entitle Pharmacy to use the Services for the Terminated Facility identified in the termination notice, and such Terminated Facility’s residents shall no longer be included in the calculation of the Fees after the final calendar month in which the termination was effective.
- Provisions Surviving Termination. Section 3 (Data Ownership), Section 4 (Fees and Payment Terms), Section 7.e (Individual License Termination), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (General Provisions), shall survive the termination of expiration of this Agreement.
- LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, POINTCLICKCARE SHALL NOT BE LIABLE FOR, NOR SHALL THE MEASURE OF DAMAGES UNDER THIS AGREEMENT INCLUDE, ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES OR DAMAGES ARISING OUT OF OR RELATING TO PHARMACY’S OR POINTCLICKCARE’S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR PHARMACY’S USE OF THE SERVICES. THE MAXIMUM LIABILITY OF POINTCLICKCARE TO ANY PERSON, FIRM OR CORPORATION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES SHALL BE THE AMOUNT PAID BY PHARMACY FOR THE SERVICES CONTEMPLATED BY THIS AGREEMENT ONLY IN THE TWELVE-MONTH PERIOD PRIOR TO THE DATE OF THE APPLICABLE CLAIM. THIS LIMITATION OF LIABILITY APPLIES TO ALL CAUSES OF ACTION INCLUDING TO BREACH OF CONTRACT, TORT LIABILITY AND NEGLIGENCE. THE LIMITATION OF LIABILITY IN THIS SECTION DOES NOT APPLY TO THE INDEMNIFICATION OBLIGATIONS IN SECTION 9 OR THE FAILURE OF PHARMACY TO PAY ANY AMOUNTS OWING TO POINTCLICKCARE.
a. Indemnification by PointClickCare. PointClickCare will defend Pharmacy (“Indemnified Parties”) from and against any claims, demands, suits, actions, proceedings, or judgments (collectively, “Claims“) made or brought against Indemnified Parties, by a third party alleging that Indemnified Party’s use of the Software or Services as permitted under this Agreement infringes or misappropriates the intellectual property rights of a third party (“Infringement Claim”). PointClickCare will indemnify the Indemnified Parties against the resulting direct damages and attorneys’ fees finally awarded against Indemnified Parties by a court of competent jurisdiction as a result of a court‐approved settlement of an Infringement Claim, provided that Indemnified Parties must: (a) promptly give PointClickCare written notice of the Infringement Claim; (b) give PointClickCare sole control of the defense and settlement of the Infringement Claim (provided that PointClickCare may not settle any Infringement Claim unless the settlement unconditionally releases Indemnified Parties of all liability); and (c) provide PointClickCare all reasonable assistance, at PointClickCare’s expense. In the event of an Infringement Claim, or if PointClickCare reasonably believes the Services may infringe or misappropriate the rights of any third party, PointClickCare may in its discretion and at no cost to Indemnified Parties: (i) modify the Services so that they no longer infringe or misappropriate, without breaching PointClickCare’s warranties; (ii) obtain a license for Indemnified Party’s continued use of the Services in accordance with this Agreement; or (iii) terminate this Agreement in accordance with its termination provisions.
- Indemnification by Pharmacy. Pharmacy agrees to defend, indemnify and hold harmless PointClickCare, its officers, directors, employees, agents and affiliates from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties (including any Facility or end user) resulting from or relating to: (a) any personal injury, tort, medical malpractice, or other acts, errors, or omissions in the accuracy of any Dispensing Software Records, medical orders and prescriptions, data, delivery of medical care or medical information or which otherwise arise out of, or are in any way connected with, Pharmacy or Integrated Facility’s or end-users’, data, access to or use of the Services, negligent or wrongful act(s), or violation of applicable laws; (b) any breach by Pharmacy of its obligations, duties, or responsibilities under this Agreement(c) any actions or omissions or violation of applicable laws on the part of Pharmacy in using or distributing the Software or Documentation or in relation to the Services thereto including but not limited to any agreements, understandings and/or arrangements between Pharmacy and Integrated Facility and/or end users that PointClickCare is not privy to and/or a party to such agreements and/or arrangements; (d) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Pharmacy relating to the Services, other than as authorized by PointClickCare in writing or made in the Documentation; (e) any claims against PointClickCare made by end users or Facilities who receive the Software (or any portion of the Services relating thereto) through the Pharmacy except to the extent subject to a warranty expressly provided by PointClickCare.
- General Provisions
- Remedies. Except as provided elsewhere herein, the parties’ rights and remedies under this Agreement are cumulative. Pharmacy acknowledges that the Software contains valuable trade secrets and proprietary information of PointClickCare, that any actual or threatened breach of the provisions of this Agreement relating to the Software or other PointClickCare intellectual property rights will constitute immediate, irreparable harm to PointClickCare for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If Pharmacy continues to use or Provide the Software after its right to do so has terminated or expired, PointClickCare will be entitled to immediate injunctive relief including an order directing that any copies of the Software, or any portions thereof, that Pharmacy attempts to import into any country or territory be seized, impounded, and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
- Independent Contractors. The parties hereto are independent contractors with respect to each other, and nothing in this Agreement will be construed to place the parties in the relationship of partners, joint ventures, fiduciaries or agents. Neither party is granted any right or any authority to assume or to create an obligation or to bind the other party.
- Notice to PointClickCare. Pharmacy is contracting with PointClickCare Technologies USA Corp., a Delaware corporation, having a business address of 5570 Explorer Drive, Mississauga, ON L4W 0C4.
- Notice to Pharmacy. Notices to Pharmacy shall be addressed to the relevant contact designated by Pharmacy on the Application, or as updated in-Service.
- Manner of Giving Notice. Except as otherwise set forth herein, all notices under this Agreement will be deemed to have been duly given (a) when received, if personally delivered; (b) when sent, if by facsimile or email if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours (with confirmation of transmission and provided email shall not be sufficient for notices of an indemnifiable claim); (c) and upon receipt, if sent by certified or registered mail or a nationally recognized courier service, with written proof of delivery.
- Amendment. PointClickCare reserves the right to modify the Services or the terms of this Agreement for any reason related to legal, regulatory, technical, or operational necessities, upon no less than ninety (90) days prior written notice to Pharmacy, provided that Pharmacy may terminate this Agreement without liability or obligation in the event Pharmacy does not consent to such modified Services or terms it being understood that Pharmacy shall remain liable for all unpaid fees prior to the effective date of the amendment. Pharmacy’s continued access to, or use of, the Services after such notice period constitutes acceptance of such changes.
- Governing Law. This Agreement will be governed by the laws of the State of Delaware and the federal laws of the United States of America without regard to its conflict of laws provision. To resolve any legal dispute arising from this Agreement, Customer agrees to the exclusive jurisdiction of the State of Delaware.
- Assignment. Pharmacy shall not assign its rights or obligations under this Agreement, voluntarily, involuntarily, by operation of law or otherwise, without PointClickCare’s prior written consent, not to be unreasonably withheld. Any attempt by Pharmacy to assign its rights or obligations under this Agreement in breach of this section is void and of no effect. PointClickCare may assign this Agreement or any of its rights or obligations hereunder. This MSA is binding upon and enures to the benefit of the parties hereto and their respective permitted successors and assigns.
- Waiver. The failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants or conditions or the future exercise of such right, but the obligation of the other party with respect to such future performance shall continue in full force and effect.
- Severability. If any provision of this Agreement is found by a court to be illegal, invalid, or unenforceable, such provision shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties and the remaining provisions of this Agreement will remain in full force and effect.
- Entire Agreement. This Agreement, together with the Application and the EULA, constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede, as of the Effective Date, any and all prior or contemporaneous agreements, arrangements or understandings, oral or written, between the parties with respect thereto, including, without limitation, any user license imbedded in the Software.
Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original and all of which, when taken together, will be deemed to constitute one and the same agreement.