WHEREAS, August has developed a full-service, hosted software platform for assisted living facilities to manage their operations and services to the residents of such facilities (the “August Platform”);
WHEREAS, among other features and functionalities, the August Platform allows certain facilities to utilize its eMAR management functionality to facilitate medication management and clinical operations for the residents of such facilities (the “August eMAR Feature”); and
WHEREAS, Pharmacy works with a number of such facilities to supply medications to residents and desires to use an API to transmit medication-related data to the August eMAR Feature for such residents for display via the August Platform under the terms and conditions of this Agreement.
The parties hereby agree as follows:
1. Definitions.
1.1. “API” means an application programming interface provided by August or Pharmacy for the purpose of transmitting medication and treatment-related data from Pharmacy to a Customer Facility for display through the August Platform.
1.2. “Customer Facility” means an assisted living facility that both: (a) is a customer of both August and Pharmacy; and (b) has elected to use the August eMAR Feature.
1.3. “Customer Facility Resident” means a resident for whom the pharmacy has sent or received a message or communication through the pharmacy's integrated system with the August Health eMAR, pertaining to that resident’s medication, care, or other related matters.
1.4. “Customer Facility User” means an employee or contractor of a Customer Facility who is authorized by the applicable Customer Facility to: (a) use the August Platform; and (b) use eMARs displayed via the August Platform for their intended purpose.
1.5. “eMAR” means an electronic medication administration record.
1.6. “Medication Order” means data for prescription medications and related treatments transmitted from Pharmacy to August via an API in order to populate the August eMar Feature.
1.7. “Order” means an order form or ordering document containing fees and initial term information, which incorporates this Agreement by reference.
1.8. “Personal Information” means any information that directly or indirectly identifies, or relates to an individual or information referred to as “personal identifiable information” or “personal information” under applicable data privacy laws, rules or regulations that one party obtains from the other party through this Agreement.
1.9. “Pharmacy Marks” means Pharmacy’s name and all related names, Marks, and branding assets that Pharmacy uses to identify itself.
2. API Availability and Usage; Data Rights.
2.1. API Availability and Usage. The parties may decide to use an API provided by either August or Pharmacy.
2.1.1. Pharmacy APIs. If the API is provided by Pharmacy (a “Pharmacy API”), then Pharmacy hereby grants to August, during the Subscription Period, a worldwide, royalty-free, nonexclusive right and license to use the Pharmacy API to transmit Medication Orders for Customer Facility Residents to August for display via the August Platform to Customer Facility Users.
2.1.2. August APIs. If the API is provided by August (an “August API”), then Pharmacy agrees that: (a) during the Subscription Period, August may use the August API to transmit Medication Orders for Customer Facility Residents to August for display via the August Platform to Customer Facility Users; and (b) Pharmacy will take all steps reasonably requested by August to promptly implement the August API such that August may use the August API for the purposes described in subsection (a) of this Section 2.1.2.
2.2. Data Rights and Representations.
2.2.1. Data Rights. Pharmacy hereby grants to August, during the Subscription Period, a worldwide, royalty-free, nonexclusive right to display Medication Orders for Customer Facility Residents to Customer Facility Users via the August Platform to facilitate the provision of medication management and clinical operations services by Customer Facilities for the benefit of Customer Facility Residents.
2.2.2. Pharmacy Data Representations. Without limiting any of its other representations or warranties in this Agreement, Pharmacy hereby represents and warrants to August that: (a) it has all right, power, and authority necessary to provide Medication Orders to August and to permit August to use and display the Medication Orders as permitted hereunder and, without limiting the generality of the foregoing, has provided all necessary disclosures and received all necessary consents to accomplish the foregoing; and (b) all Medication Orders provided by Pharmacy to August hereunder are up-to-date, accurate, and complete at the time of delivery.
2.3. Pharmacy Marks. Pharmacy hereby grants August a non-exclusive, royalty-free, fully paid up, worldwide right and license to display certain Pharmacy Marks, to indicate that the August Platform uses, displays, or integrates Medication Orders received from Pharmacy.
3. Data security and healthcare regulatory compliance.
3.1. Personal Information. Each party will delete Personal Information received from the other or its applicable users in connection with this Agreement when it is no longer necessary for the parties' performance of the Agreement. This provision does not apply to (a) information August collects directly from Customer Facilities that is unrelated to the August eMAR Feature or Pharmacy or (b) information Pharmacy collects directly from Customer Facilities that is unrelated to the August Platform.
3.2. Information about Customer Facility Residents. August and/or Pharmacy may receive Personal Information about Customer Facility Residents, either directly from Customer Facility Users, from Pharmacy after authorization, or from August. August and/or Pharmacy’s collection and use of such Personal Information will be only as authorized by Customer Facility Residents and will comply with all applicable laws. Each party's privacy policy and privacy practices will comply with applicable laws.
3.3. Information Security and Management. Each party will develop, implement, maintain and enforce an industry standard written information privacy and security program that includes, at a minimum: (a) technical and physical safeguards reasonably designed to protect the confidentiality, integrity, availability of Personal Information and other data received or processed from August, Customer Facilities and Customer Facility Users, and Customer Facility Residents, and (b) complies with any applicable laws for any geographic region in which Pharmacy or August does business and in which a Customer Facility is located.
3.4. Compliance with Healthcare Fraud and Abuse Laws. Pharmacy represents and warrants that Pharmacy complies with all applicable laws and regulations, including but not limited to healthcare fraud and abuse laws, and laws regarding the collection and sharing of Personal Information. The parties agree that any payments made by Pharmacy hereunder are: (a) consistent with fair market value in an arm’s length transaction, (b) not based on the value or volume of any healthcare items or services provided by August, and (c) do not constitute splitting of any professional fees paid to August.
3.5. HIPAA. The parties acknowledge and agree that Pharmacy may create, receive, maintain, or transmit to August certain “protected health information” (“PHI”, as such term is defined in the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009 (the “HITECH Act”) and as set forth in their respective implementing regulations (collectively, “HIPAA”)) in order to perform its obligations and exercise its rights under this Agreement. Each party acknowledges and agrees that, in receiving such PHI, August is serving as Pharmacy’s “Business Associate” (as defined under HIPAA). To the extent applicable and the parties collect or receive PHI, August and Pharmacy each agree to discharge their respective duties hereunder in accordance with the applicable provisions of HIPAA. In furtherance of the foregoing, to the extent that the parties collect or receive PHI, the terms of the Business Associate Agreement set forth in the BAA of this Agreement shall apply and are hereby incorporated by reference.
4. Confidentiality.
4.1. Definition. “Confidential Information” means any non-public information and materials disclosed or otherwise made available hereunder by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) about its business affairs, products or services, intellectual property rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”. Confidential Information does not include information that: (a) is or becomes generally known by the public other than by breach of this Agreement by or other wrongful act of, the Receiving Party; (b) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (c) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
4.2. Duty of Confidentiality. The Receiving Party agrees: (a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its affiliates, and their officers, employees, consultants, accountants, and legal advisors who have a “need to know”, who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Agreement; (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations and exercising its rights under this Agreement; and (c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.
4.3. Legally Required Disclosures. If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party must provide: (a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, the Receiving Party remains required by applicable law to disclose any Confidential Information, the Receiving Party may disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential.
5. Fees and payments.
5.1. Fees. Pharmacy will pay August the fees specified the relevant Order (“Fees”). Pharmacy shall pay the August the Fees within thirty (30) days of Pharmacy’s receipt of the invoice via a payment method mutually agreed upon by the Parties. If Pharmacy uses a third-party payments processor to make payments. Pharmacy shall abide by any applicable terms put in place by such payments processor. Late payments may be subject to a late fee in the form of interest on past due amounts at a rate of 1.5% per month, or, if lower, the maximum rate allowed by law. Pharmacy shall bear all taxes in connection with its use of August API or otherwise accrued under this Agreement (except for taxes based on net income on Fees received by August).
6. Representations and warranties; warranty disclaimer.
6.1. Mutual Representations and Warranties. Each party represents and warrants to the other that: (a) it is duly organized, validly existing and in good standing under the laws of its organizing jurisdiction and has all requisite power and authority to enter into this Agreement; (b) it is duly authorized by all requisite action and permissions to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, and that the same will not conflict or cause a default with respect to its obligations under any other agreement; and (c) it will perform its obligations and exercise its rights hereunder in compliance with all applicable laws.
6.2. Pharmacy General Representations and Warranties. Pharmacy warrants to August that: (i) it will provide August with the necessary tools and information required for August to fulfill its obligations hereunder; (ii) the Pharmacy API, or other materials provided to August by Pharmacy and any use thereof by August as contemplated under this Agreement, will not infringe, misappropriate, or otherwise violate any third party’s intellectual property, proprietary, contractual or other rights (including without limitation any rights of privacy); (iv) it will only use the August API for the purposes specified in the Agreement, and will not use the August API to compete against August.
6.3. Except as set forth in this section 6, August disclaims all warranties, implied or expressed, including without limitation all express or implied warranties of merchantability, non-infringement and fitness for a particular purpose, and the stated express warranties, if any, are in lieu of all other obligations and performance liabilities arising out of or in connection with the provision of the August API hereunder. August makes no warranty of any kind with respect to any third party materials, even if such third party materials were recommended by August, and August does not warrant that use of the August API will be error-free, that use will be uninterrupted, or will lead to specific results.
7. Intellectual Property Ownership.
7.1. Pharmacy IP Ownership. As between Pharmacy and August (except for the limited licenses granted by this Agreement): (i) Pharmacy retains all rights, title and interest in and to all intellectual property rights embodied in or associated with the Pharmacy Marks and Pharmacy API (if applicable).
7.2. August IP Ownership. August retains all rights, title and interest in and to all intellectual property rights embodied in or associated with the August Platform and the August API.
7.3. No Implied Rights. There are no implied licenses under this Agreement, and any rights not expressly granted to a party hereunder are reserved by the other party or its suppliers. Each party agrees it will not take any action inconsistent with the other’s ownership as specified herein. Neither party will exceed the scope of the licenses granted hereunder.
7.4. Marketing License. August may additionally use Pharmacy Marks to denote Pharmacy as a customer of the Services on its website and in other marketing materials, provided it complies with any trademark and branding guidelines provided by Pharmacy regarding the same.
7.5. No Implied Rights. There are no implied licenses under this Agreement, and any rights not expressly granted to a party hereunder are reserved by the other party or its suppliers. Each party agrees it will not take any action inconsistent with the other’s ownership as specified herein. Neither party will exceed the scope of the licenses granted hereunder.
8. Indemnification.
8.1. Pharmacy Indemnification. Pharmacy agrees to indemnify, defend and hold harmless August, its affiliates and each of its directors, officers, employees, customers, stockholders and representatives from and against any and all costs, expenses, losses, liabilities, and fees (including reasonable attorneys’ fees) resulting from a third party claim, action, or lawsuit arising from: (a) the gross negligence or willful misconduct of Pharmacy; (b) allegations that the Pharmacy API infringes, misappropriates, or otherwise violate any third party’s intellectual property, proprietary, contractual, privacy or other right; (c) any breach of its representations and warranties under this Agreement; or (d) Pharmacy’s use of the August API not in accordance with this Agreement.
9. Limitation of liability.
9.1. Consequential Damages Waiver. August shall not have any consequential, special, indirect, exemplary, punitive, or other liability whether in contract, tort or any other legal theory, under this Agreement, even if advised of the possibility of such liability, and notwithstanding any failure of essential purpose of any limited remedy.
9.2. Direct Cap. August’s aggregate liability under this Agreement is limited to direct damages up to the total amounts paid or payable to August by pharmacy for the services in the twelve months preceding the event giving rise to the liability.
10. Subscription period and termination.
10.1. Subscription Period. This Agreement will commence on the Effective Date and continue for the Initial Subscription Period identified in an Order, with subsequent, automatic annual renewals for equal time periods (“Renewal Subscription Period” and, collectively with the Initial Subscription Period, the “Subscription Period”), unless (a) either party provides written notice of its intent to not renew at least thirty (30) days prior to the commencement of the forthcoming Renewal Subscription Period or (b) it is earlier terminated in accordance with one of the procedures described in this Section 11.
10.2. Termination for Lack of Facility Use. August may terminate this Agreement at any time upon written notice if there are no Customer Facility Residents at any Customer Facility which require medication information be shared from Pharmacy records via the August API or Pharmacy API, or if all Customer Facilities covered by an Order cease use of the August Platform.
10.3. Termination for Material Breach. If either party materially breaches this Agreement (including failure to make any payment hereunder), the other party may terminate this Agreement by giving the breaching party thirty (30) days written notice of such breach, unless the breach is cured within the notice period. Without limiting the foregoing, August may suspend or limit Pharmacy’s access to or use of the Service if (i) Pharmacy’s account is more than sixty (60) days past due, or (ii) Pharmacy’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with August’s ability to provide access to the Services to other customers; provided that in the case of subsection (ii): (a) August shall use reasonable good faith efforts to work with Pharmacy to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, August shall use commercially reasonable efforts to provide notice to Pharmacy describing the nature of the damage or degradation; and (c) August shall reinstate Pharmacy’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.
10.4. Effect of Termination. Upon termination of this Agreement, Pharmacy agrees to pay August all amounts due or accrued as of the date of such termination that are not subject to a good faith dispute, if any. In the event of termination, Pharmacy shall cease using the Services (including ceasing any use of the August API). Upon the expiration or termination of this Agreement for any reason, each Party shall return to the other party or destroy (and so certify to the other party) any Confidential Information obtained from the other party (subject to the exceptions set forth herein). Sections 3-5, 7-9, 10.4, and 11 shall survive any termination or expiration of this Agreement.
11. Miscellaneous.
11.1. Force Majeure. Except for its payment obligations, neither Party shall be liable to the other for any delay or failure to perform, which is due to causes beyond the reasonable control of said Party, including, but not limited to, acts of God, acts of the public enemy, acts of any governmental authority in its sovereign capacity, fires, floods, power outages, hurricanes, earthquakes, epidemics, quarantine restrictions, strikes or other labor disputes and freight embargoes; provided, however, that failure to make any payments provided for herein shall not be excused for any of the foregoing reasons.
11.2. Relationship of Parties. For all purposes under this Agreement each Party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. August will be solely responsible for its income taxes in connection with this Agreement and Pharmacy will be responsible for sales, use and similar taxes, if any.
11.3. Assignment. Pharmacy shall not have the right to assign this Agreement to another party, whether by merger, acquisition, operation of law, or otherwise, without August’s prior, written consent.
11.4. Governing Law. This Agreement shall be interpreted and governed in accordance with the laws of the State of California.
11.5. Dispute Resolution. All disputes under this Agreement shall be resolved by the federal and state courts located in San Francisco County, California including the United States District Court for the Northern District of California, and the Parties consent to the jurisdiction of such courts, agree to accept service of process as defined in the applicable laws, and hereby waive any jurisdictional or venue defenses otherwise available to them. In the event any litigation initiated by a Party against the other Party to enforce, interpret or otherwise obtain judicial relief in connection with this Agreement, the prevailing Party shall be entitled to recover from the unsuccessful Party all costs, expenses and actual attorneys’ fees relating to or arising out of (i) such proceeding, whether or not such proceeding proceeds to judgment; (ii) an appeal taken during the pendency of the proceeding or a final judgment; and (iii) any post-judgment or post-award proceeding, including without limitation one to enforce any judgment or award resulting from any such proceeding.
11.6. Export Control. Pharmacy agrees that it will comply with all applicable export control regulations with respect to its use of the Services (including the use of any Interface).
11.7. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Pharmacy Terms and Conditions and the BAA, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; and (ii) second, any other documents incorporated herein by reference.
11.8. Waiver; Modification. No waiver, change, or modification to this Agreement will be effective unless in writing signed by both Parties.
11.9. Notices. Any notices in connection with this Agreement will be in writing and sent by electronic mail, first class mail, or major commercial rapid delivery courier service to the address specified on an Order or such other address as may be properly specified by written notice hereunder.
11.10. No Third Party Beneficiaries. The Parties acknowledge that each is entering into this Agreement solely on the basis of this Agreement and representations contained herein, and for its own purposes and not for the benefit of any third party.
11.11. Severability. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated so that this Agreement shall otherwise remain in full force and effect and enforceable.
11.12. Counterparts. The Parties agree that this Agreement may be signed by manual or electronic signatures and in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.