Effective: January 1, 2021
1. The Services
For the purposes of these Terms, the term "Services" means, collectively, all EZSCRIPTRx products, services and offerings, including but not limited to: (a) the use of EZSCRIPTRx's websites or networks (the "Site"); (b) EZSCRIPTRx's services facilitating the submission of transmissions between payers and you to obtain Benefits and EZSCRIPTRx verification (hereinafter "Benefits Services"), and; (c) any Content. "Content" includes, but is not limited to, any EZSCRIPTRx API, and related technologies, documentation, data, scripts, algorithms, applications, software, templates, insights, results, outputs, reports, tools, and other materials or information made available by or for EZSCRIPTRx.
2. Terms Applicable to Specific Services
The Services available through the Site or otherwise available from EZSCRIPTRx may have additional or different terms and conditions, such as end user license agreements, or other agreements or terms, that apply to your access or use of such Services, including the terms and conditions applicable to the Benefits Services (hereinafter "Additional Terms"). In the event of a conflict or inconsistency between these Terms and such Additional Terms, the particular term that is in conflict within the Additional Terms shall control with respect to your access and use of the particular service to which such Additional Terms apply. Your use of the Benefits Services is subject to the payment of all applicable fees. Applicable fees include Transaction Fees and Pass Through Fees as provided by EZSCRIPTRx.
3. Your Rights to Use the Site
Subject to your compliance with the Terms, EZSCRIPTRx grants you a non-exclusive, limited, license to access the Site, for its intended use only, and only for your internal business purposes, in a manner that is consistent with the Terms.
4. Limitations on Use
Your right to use the Services is conditioned upon compliance with the Terms, including the payment of any applicable fees. Unless explicitly authorized by the Terms, you may not: (a) copy, modify, or make derivative works of the Services; (b) sublicense, lease, sell, rent, use or otherwise transfer or make available the Services to any third party; (c) reverse engineer, decompile, disassemble, or attempt to derive the source code or equivalent of Services; (d) create a derivative work of or a functionally similar competing product to the Services (including but not limited to EZSCRIPTRx's APIs); (e) use software except as specifically allowed under its applicable terms, or; (f) remove, alter, cover, or distort any copyright, patent or other attribution on or in any of the Services.
5. Ownership and Reservation of Rights
5.1 EZSCRIPTRx's Retention of Rights
You acknowledge that as between you and EZSCRIPTRx, EZSCRIPTRx owns all rights title and interests in and to the Services, including all Intellectual Property therein. Except as expressly granted in the Terms, EZSCRIPTRx retains all rights, title, and interests in and to the Services, including all Intellectual Property related thereto, and nothing in the Terms will confer any license to any EZSCRIPTRx Intellectual Property by implication, estoppel, or otherwise. "Intellectual Property" means patents, copyrights, trade secrets, trademarks (including trade names, logos and service marks (collectively the "Marks")) and know-how, in each case whether registered or unregistered, and including any application(s) for patents or registration for any of these, and the equivalent on a world-wide basis, and in each case all rights related thereto. You may not use EZSCRIPTRx's Marks without the prior review and written approval of EZSCRIPTRx.
5.2 Your Retention of Rights
Except as expressly granted in the Terms, you retain all right, title, and interests in and to Your Content, including all Intellectual Property related thereto. "Your Content" means all information and materials provided by you or a third party in relation to your use of the Services, whether in electronic form or otherwise, including but not limited to data and PHI, used by you or a third party in conjunction with your use of the Services. In order to provide you with the Services, you hereby grant EZSCRIPTRx a non-exclusive, worldwide, fully paid-up, royalty-free, license to use Your Content, for the sole purpose of allowing EZSCRIPTRx to provide Services, and to develop, troubleshoot, improve, and commercially offer the Services.
5.3 Option to provide Feedback
You do not have to provide feedback to EZSCRIPTRx on its products or services, such as ideas for improvements, changes, bug fixes, workarounds, and other ideas related to current or future products or services (collectively "Feedback"), but if you do provide us with Feedback we have to be free to use it without restrictions. Therefore, if you provide Feedback, you hereby grant EZSCRIPTRx a worldwide, perpetual, royalty-free, fully paid-up, irrevocable, nonexclusive, fully sublicensable, license, to use, reproduce, modify, adapt, translate, publish, publicly perform and display, make derivative works of, broadcast, transmit and distribute, the Feedback, for any purpose and in any form, medium, or technology now known or later developed. This includes, without limitation, the right to incorporate or implement the Feedback into any EZSCRIPTRx product or service, new or existing, and to market, sell, offer to sell, import, sublicense and distribute the Feedback as incorporated or embedded in any product or service, in any manner, without compensation to you. You warrant that: (a) you have the right and authority to disclose Feedback to EZSCRIPTRx, and to grant this license, and; (b) EZSCRIPTRx's exercise of the rights granted pursuant to this license will not infringe or otherwise violate any third party rights, including those related to Intellectual Property. Feedback may include but is not limited to ideas, software, data, and other material that may be provided to EZSCRIPTRx related to current or future technologies, products, and services.
5.4 Confidential Information
You may receive or be exposed to certain information, materials, and data related to EZSCRIPTRx Services that EZSCRIPTRx has designated as or that a reasonable party under the circumstances would consider confidential or proprietary ("Confidential Information"). Confidential Information includes without limitation, the Services, including without limitation, Content, software, databases, any EZSCRIPTRx API, documentation, specifications, algorithms, data belonging to EZSCRIPTRx or its licensors, and all EZSCRIPTRx Intellectual Property related thereto. You shall not disclose Confidential Information to any third party, or use Confidential Information in a manner not explicitly authorized herein. You shall protect Confidential Information in a manner at least as protective as your own confidential information, but in no case with less than commercially reasonable care, and shall prevent any unauthorized use or disclosure of Confidential Information, including by you or a third party. You acknowledge that any unauthorized use or disclosure of EZSCRIPTRx Confidential Information will cause EZSCRIPTRx irreparable harm and injury for which there are inadequate remedies at law, and that notwithstanding any other provision of this agreement, EZSCRIPTRx shall be entitled to equitable relief for unauthorized use or disclosure of its Confidential Information, without the need to post bond, in addition to all other remedies available to it.
6. Updates to the Services or Terms
7.1. You warrant that: (a) you have the authority to enter into the Terms; (b) you will comply with all applicable laws and Regulations; (c) you will comply with the Terms; (d) Your Content and the use of Your Content in or with the Services shall not infringe the Intellectual Property of any party, and; (e) you have the right and authority to grant to EZSCRIPTRx all of the licenses and rights set forth in the Terms.
7.2. You warrant and agree that you will use the Services in accordance with all applicable Regulations. "Regulations" means, in the United States, collectively, the Privacy and Security Regulations promulgated by the United States Department of Health and Human Services ("HHS") at 45 CFR Parts 160, 162 and 164 that were issued pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended, and the rules and regulations promulgated thereunder ("HIPAA") and pursuant to the provisions of the Health Information Technology for Economic and Clinical Health Act of 2009, as amended, and the rules and regulations promulgated thereunder ("HITECH") and similar laws, rules and regulations that may be promulgated by HHS. In jurisdictions outside the United States, "Regulations" means the regulations and legal requirements that relate to the creation, use, sharing, disclosure, and transmission of healthcare information, data, and procedures, and patient data and information in such jurisdiction. "Protected Health Information" or "PHI" will have the same meaning as the term "protected health information" in 45 C.F.R. 160.103, as applied to the information created, received, maintained or transmitted by you, your users, or another party associated with your use of the Services.
You agree to indemnify and hold harmless EZSCRIPTRx, its officers, directors, employees, attorneys and agents from and against any and all claims, demands, liabilities, damages, losses or expenses, including reasonable attorneys' fees and costs, due to or arising out of: (a) Your Content or the use of such Content in or with the Services; (b) a breach of the Terms or any of your warranties under the Terms; (c) a claim that Your Content or the use of Your Content with the Services infringe another's Intellectual Property.
Except as expressly provided for herein, the Services, the EZSCRIPTRx Software and any materials provided by EZSCRIPTRx pursuant to this Agreement shall be provided “as is” and on an “as available” basis. EZSCRIPTRx expressly disclaims all other warranties of any kind, whether express, implied, statutory, or otherwise relating to the Services, the EZSCRIPTRx Software, including without limitation, implied warranties of merchantability, fitness for a particular purpose, non-infringement and patent validity, and warranties arising by statute or otherwise in law or from a course of dealing or use of trade. EZSCRIPTRx does not warrant that the Services, the EZSCRIPTRx Software or any materials provided hereunder will meet any requirements or needs Company may have or that the use of the services the EZSCRIPTRx Software will be uninterrupted or error-free. EZSCRIPTRx makes no representations concerning, and does not guarantee, the accuracy, completeness, currency, legality or reliability of the technology or its applicability to individual circumstances.
10. Limitation of Liability
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EZSCRIPTRX OR ANY EZSCRIPTRX INDEMNIFIED PARTY, BE LIABLE TO COMPANY OR ANY PERSON WHOSE CLAIM IS RELATED TO THIS AGREEMENT, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR (A) LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES OR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SIMILAR DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER THE APPLICABLE ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) FOR ANY CLAIMS, DAMAGES OR COSTS OF ANY NATURE IN EXCESS OF $25,000.
11. Exclusions and Limitations
12. Third Party Websites, Content, Products and Services
The Services may provide links to Websites and access to Content, products and services of third parties ("Third Party Content"), including users, advertisers, affiliates and sponsors of the Services. EZSCRIPTRx is not responsible for Third Party Content provided on or through the Services or for any changes or updates to same. THIRD PARTY CONTENT IS OFFERED AS-IS, WITH NO WARRANTIES, AND YOU BEAR ALL RISKS ASSOCIATED WITH THE ACCESS TO, AND USE OF, SUCH THIRD PARTY CONTENT.
14. Acceptable Use Policy
In order to preserve the quality and security of the Services, and out of respect for other users, you agree not to: (a) access or use the Site in any manner that could damage, disable, overburden, or impair any EZSCRIPTRx accounts, the Services, computer systems, networks, or other users of the Services; (b) attempt to gain unauthorized access to any parts of the Site or any EZSCRIPTRx accounts, computer systems or networks; (c) interfere or attempt to interfere with the proper working of the Services or any EZSCRIPTRx accounts, computer systems or networks, or; (d) use any robot, spider, scraper or other automated means to access the Site or any EZSCRIPTRx accounts, computer systems or networks without EZSCRIPTRx's express written permission. You further agree not to use the Site in a manner that: (a) is false or misleading; (b) is defamatory, derogatory, degrading or harassing of another or constitutes a personal attack; (c) invades another's privacy or includes, copies or transmits another's confidential, sensitive or personal information; (d) promotes racism, hatred or harm against any group or individual; (e) is obscene or not in good taste; (f) violates or infringes or promotes the violation or infringement of another's rights, including Intellectual Property Rights; (g) you do not have the right and authority to do so; (h) violates or promotes the violation of any applicable laws or regulations; (i) contains a solicitation of funds, goods or services, or promotes or advertises goods or services; or (j) introduces any virus, Trojan horse, or other component designed to limit or harm the functionality of a network or computer. EZSCRIPTRx may report violators to the relevant authorities and may act under the fullest extent of applicable laws to enforce these terms. EZSCRIPTRx retains the right to immediately terminate access to the Services without notice if in its sole determination it believes such termination is necessary to enforce the Terms, for the proper operation or security of the Services, or for the protection of its network, data, Site, the Intellectual Property rights of EZSCRIPTRx or a third party.
15. Security and Password Management
If any of the Services require you to open an account, you must complete the registration process by providing us with current, complete and accurate information as required by the applicable registration form. You may also be required to choose a password and a user name. Access to and use of password protected or secure areas of the Site are restricted to your authorized users only, and you are responsible for their compliance with the Terms. You agree not to share your password(s), account information, or access to the Site with any other person. You are responsible for maintaining the confidentiality of passwords and account information, and you are responsible for all activities that occur through the use of your passwords or accounts or as a result of your access to the Site. You agree to notify EZSCRIPTRx immediately of any use of your passwords or accounts that you did not authorize or that is not authorized by the Terms.
This Agreement shall commence on the Effective Date and shall continue for one year (1) year (the “Initial Term”), unless earlier terminated pursuant to the terms set forth in Section 17 below. At the end of the Initial Term, the Agreement shall automatically renew without any further action by either party for successive one (1) year terms, unless either party terminates the Agreement by providing at least one hundred and eighty (180) days prior written notice to the other party before the end of the term then in progress. The Initial Term and any renewal terms are collectively referred to in this Agreement as the “Term.”
17.1 Termination by Either Party for Cause If either party materially breaches any covenant, agreement, term or provision of this Agreement applicable to such party and such material breach continues for a period of thirty (30) days after written notice is delivered to the breaching party from the other party stating the specific material breach, then the non-breaching party may terminate this Agreement by giving notice thereof to the breaching party.
17.2 Termination Without Cause Either party shall have the right to terminate this Agreement at any time without cause as described herein: (i) either party may terminate this Agreement at any time without cause upon at least thirty (30) days advance written notice before the next billing cycle. If Company exercises its right to terminate this Agreement under this 17.2 Termination Without Cause, it shall on or before the effective date of termination pay EZSCRIPTRx for any direct or indirect unrecovered capital expense, reasonable wind down costs and any third-party termination fees or other liabilities incurred by EZSCRIPTRx as a result of such termination by Company.
17.3 Monthly Plans are billed month-to-month with thirty (30) days notice required for cancellation. You can change plan levels at any time. Changes to plan level will take effect at the start of the next billing cycle.
17.4 Annual Plans are billed month-to-month with thirty (30) days notice required for cancellation. You can change plan levels at any time. Changes to plan level will take effect at the start of the next billing cycle. Cancellation incurs a one month cancellation penalty.
18. E-1 and B-1 Inquiry Use Case
18.1 The pharmacy NPI used in the Pharmacy Benefit Inquiry (B-1) must be the Intended Pharmacy’s NPI. The Intended Pharmacy must be a Participating Pharmacy.
18.2 Client must be able to provide documented evidence of Participating Pharmacy’s consent to use its NPI to submit the Pharmacy Benefit Inquiry and show that the Participating Pharmacy has expressly agreed to the following requirements:
18.2.1 Participating Pharmacies are responsible for all pharmacy benefits manager (hereinafter “PBM”) transaction fees which will be billed to them directly by the PBM;
18.2.2 Participating Pharmacies whose NPI was used to submit the Pharmacy Benefit Inquiry shall be prepared handle any inquiries and/or prescription audits; and
18.2.3 The PBM, health plan, or other inquiries made pursuant to applicable law or regulation, may require Client to provide written proof that patient consent was obtained prior to the submission of each Pharmacy Benefit Inquiry. EZSCRIPTRx may audit Client’s records relevant to this subsection (c) at any time upon ten (10) days prior written notice. Client shall provide prompt support to EZSCRIPTRx in such efforts.
18.3 If the Submitter is not the Intended Pharmacy, the Submitter must have prior written consent of the Intended Pharmacy to use the Intended Pharmacy’s NPI for the purpose of submitting the Pharmacy Benefit Inquiry.
18.4 Submitters shall ensure required inputs for the Pharmacy Benefit Inquiry are correct and accurate.
18.5 Medications for which the Pharmacy Benefit Inquiry is submitted must reflect the drug identifier, dosage form, and applicable instructions as written on the prescription.
18.6 Prescriber NPI used to submit the Pharmacy Benefit Inquiry must be the NPI of the Prescriber listed on the prescription.
18.7 Each use case scenario may vary and EZSCRIPTRx may review any scenarios that it determines do not appear to fit any or all of the above criteria. Notwithstanding any other terms of the Agreement, EZSCRIPTRx may suspend or terminate all API access at any time in situations it deems in its sole discretion where a violation of any of the above terms has occurred.
18.8 Consent is provided by the insured to run an eligibility inquiry (E-1). At no time will the eligibility inquiry be used for the purposes of “scrubbing data”.
18.9 All eligibility inquiries are run on the NPI of the pharmacy that will be the filling pharmacy.
18.10 Consent is provided by the insured to run a benefits inquiry (B1). At no time will the benefits inquiry be used for the purposes of “Fishing for Medication Coverage”.
18.11 All benefits inquiries are run on the NPI of the pharmacy that will be the filling pharmacy.
18.12 All benefits inquiries will be representative of a real prescription and run ONLY at the point of Prescriber/Patient contact or thereafter. Included in benefits inquiries must reflect drugs in the actual prescription and the associated directions in the same prescriptions when it applies.
18.13 All benefits inquiries should never be run for drugs outside the recommendations of the prescriber.
18.14 All benefits inquiries requests will be run on the NPI of the prescriber and the filling pharmacy’s NPI, and patients and prescriber consent will be obtained prior to benefits inquiries and will be documented and proof of the same kept as records for verification.
18.15 EZSCRIPTRx benefits and eligibility inquiry services are a privilege and will be used responsibly and with the best business practice efforts to comply with local and federal guidelines and laws as they relate to consumer consent and eligibility.
18.16 At no time will this Patient Health Information (PHI) be shared with any individual or organization outside the pharmacy or its registered agent’s internal organizations.
18.17 All parties agree to have fully executed Business Associate Agreements (BAA)
19. General Terms
19.1 Force Majeure
Neither party will be liable to the other for any failure or delay in performance of an obligation, other than obligations to make payments, arising out of any event or circumstance beyond the reasonable control of that party, including without limitation acts of God, earthquakes, fires, floods, power outages, interruptions in telecommunication services, strikes, and governmental actions.
You may not assign or transfer any rights under the Terms, including your licenses to any Content, including in relation to the sale of a practice or business, to any third party without EZSCRIPTRx's prior written consent. Any unauthorized attempt to do so will be null and void.
19.3 Export Obligations
You may not export, directly or indirectly; any of the Services in violation of any U.S. export laws or regulations.
19.4 Waiver and Severance
EZSCRIPTRx's failure to enforce any provision of the Terms shall not constitute a waiver of such right. If any term of these Terms is found to be unenforceable, that term is to be modified to make that term legal and enforceable, and the balance of the Terms within that Section, and the remainder of the Terms shall continue in full force and effect, such change to be made in a manner to maximize the enforcement of the remaining terms.
19.5 Minimum Age Requirement
You must be at least 18 years old or older to use the Services (including the Site).
19.6 Entire Agreement
The Terms, along with any Additional Terms, represent the final agreement between the parties regarding the subject matter, and supersede all prior or contemporaneous agreements, whether written or oral.
19.7 Choice of Law and Venue
These Terms, and all related disputes between the Parties under or relating to these Terms, whether in contract, tort or otherwise, shall be governed by the laws of the State of California, without reference to conflict of laws principles, and all legal actions must be brought in the court of competent jurisdiction within California, (except that EZSCRIPTRx may bring an action for an injunctive relief or other equitable relief in any proper jurisdiction and/or venue). The Parties hereby waive any claim of lack of jurisdiction or inconvenient forum within the venues and jurisdictions agreed to herein. THE PREVAILING PARTY IN ANY LEGAL ACTION SHALL BE ENTITLED TO REASONABLE ATTORNEY'S FEES AND COSTS RELATED TO THE LEGAL ACTION FROM THE OTHER PARTY. To the extent allowed by law, you and EZSCRIPTRx agree that any proceedings to resolve or litigate any dispute, whether in arbitration, in court, or otherwise, will be conducted solely on an individual basis, and that neither you nor EZSCRIPTRx will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you or EZSCRIPTRx acts or proposes to act in a representative capacity. You and EZSCRIPTRx further agree that no proceeding will be joined, consolidated, or combined with another proceeding without the prior written consent of you, EZSCRIPTRx, and all parties to any such proceeding. The provisions of this section are to be enforced to the maximum extent legally available.
All notices required or permitted hereunder will be given in writing by (i) in-person delivery with proof of delivery, (ii) certified mail, postage prepaid, (iii) nationally recognized overnight courier service, or (iv) email with proof of delivery. Notice given in person will be deemed given upon delivery. Notices given by certified mail, postage prepaid will be deemed given three (3) business days from the date of mailing. Notice given by nationally recognized overnight courier service will be deemed given on the next business day following mailing. Notice given by email will be deemed given upon receipt, provided such email is followed by a notice in writing sent within three (3) business days of the date of the email via certified mail, postage prepaid or by nationally recognized overnight courier service. Notice will be delivered or mailed to the parties at the following addresses or at such other places as a party will designate in writing.
31351 Via Colinas, Suite 206
Westlake Village, California 91362
Attention: Dustin Tyler
Phone: (888) 511-5601
with a copy (which shall not constitute notice) to:
Hooper, Lundy & Bookman, P.C.
1875 Century Park East, Suite 1600
Los Angeles, California 90067
Attention: Robert F. Miller
19.9 Contact Information
If you have any questions regarding the Terms, please contact EZSCRIPTRx