McKesson Corporation, on behalf of itself and its subsidiaries and affiliates (“McKesson”) has engaged Retail Insights, LLC (“Retail Insights”) to provide data analysis and reporting services to pharmacies about over-the-counter, front-end and other non-prescription sales (“Data Services”), and to make such analyses available to participating pharmacies through access to the McKesson Corporation Insights Portal (“Portal”). Health Mart Systems, Inc. (“Health Mart”), a McKesson subsidiary, wishes to make such Data Services, Portal access and other services (collectively, the “Front End Insights Program”) available to its franchise members.
By signing this Program Term Sheet, which you will do by electronically checking a box to indicate your acceptance of the terms contained herein, you acknowledge and agree that you have carefully read, and fully understand all of the terms and conditions herein, and enter into the Front End Insights Program on behalf of the Pharmacy you represent freely, knowingly, and without coercion, intending to be legally bound thereby.
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PHARMACY OBLIGATIONS
Pharmacy will allow data collection and analysis to support the Front End Insights Program. Pharmacy shallexecute a Data Authorization Agreement with its Data Vendor and take any other actions necessary to authorize McKesson and Retail Insights to collect and aggregate Pharmacy’s point-of-sale data and deliver it to McKesson and Retail Insights. All data provided by Pharmacy or its Data Vendor shall be de-identified information and shall not include Protected Health Information subject to the Health Insurance Portability and Protection Act. Pharmacyauthorizes McKessonto provide its Data Vendor with documentation of Pharmacy’s agreement to be bound underthis Program Term Sheetin order to evidence Pharmacy’s participation in the Front End Insights Program.
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FRONT END INSIGHTS PROGRAM
The Front End Insights Program is provided by McKesson and its third party vendors. The Portal is operated by a third-party vendor to enable Pharmacyto access certain data, analyses, reports and other services related to Pharmacy’s product purchasing, orderingand sales.Access and use of the Portal is subject to the terms and conditions of the Franchise Agreement between Pharmacyand Health Mart andthis Program Term Sheet.
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DATA AUTHORIZATION
Pharmacyacknowledgesand agreesthat participation in the Front End Insights Programrequires McKesson and Retail Insightsto obtaincertaindata from Pharmacy’spoint of salesystem(“POS Vendor”). Pharmacyhereby authorizesits POSVendorto send all requested data to McKesson and Retail Insights for use in the Front End Insights Program (“Delivered Data”).Pharmacyshall promptly advise McKessonin writing of the existence of any restrictions upon the use or disclosure of any Delivered Data. McKesson shall be permitted, even after the expiration or termination of thisProgram Term Sheet, to use the Delivered Data, including any metadata or data arising or derived from the Delivered Data, as well as any de-identified or aggregated data, for the uses described in this Program Term Sheet or other uses, including for sale to third-parties. Pharmacyhereby grants to McKesson the right to create derivative works and/or compilations based on the Delivered Data.
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PORTAL ACCESS
Upon completion of any registration requirements and acceptance of Pharmacy’s enrollment by McKesson, Pharmacy will be provided access to the Portal. Pharmacy may not permit anypersonother than Pharmacy’sauthorized employees and representativesto access the Portal. Pharmacy shallimmediately notify McKessonin the event of any unauthorized access to thePortal or any other breach of security that is known or becomes known toPharmacy. Pharmacywill be liable to McKessonand its vendors for any use or misuse of Pharmacy’saccess to and activity in the Portalby anyone using itsunique access information.
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FEE
McKessonwill charge Pharmacy a monthly fee of $25 for one (1) Pharmacylocation, plus $15 for each additionalPharmacylocation (“Fee”)participating in the Front End Insights Program.Upon thirty (30) days prior notice to Pharmacy, theFee may be increased to an amount McKessondetermines in its
discretion. McKessonwill issue Pharmacy an invoice for Pharmacy’s participation of the Front End Insights Program, which invoice must be paid within thirty (30) days. Pharmacy will be required to pay any applicable taxes associated with the Fee. McKessonhas no obligation to provide the Front End Insights Program to Pharmacy in the event the Fee is not paid, and may immediately restrict Pharmacy’s access to the Portal in the eventthat the Fee is not paid in accordance with this Agreement.
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LICENSE ANDRESTRICTIONS
Subject to acceptance of Pharmacy’sapplication to access the Portal, andPharmacy’scompliance with thisProgram Term Sheetand the Franchise Agreement, McKessonhereby grants toPharmacya limited, non-transferable, nonexclusive, license to use, access and display the Portalsolely for Pharmacy’sinternal business purposes and subject to the terms and conditions of this Program Term Sheet. Pharmacymay not use any robot, spider or other automatic device or manual process to monitor or copy thePortalor any content contained on or available through the Portal. Pharmacymay not copy, market, distribute, export, translate, reverse engineer, transmit, merge, modify, transfer, adapt, loan, rent, lease, assign, share, redistribute, host, hyper-link to, frame, store, or permit access to all or part of the Portalby any person other than Pharmacy’sauthorized employees and representatives. McKessonretains the right, but is not obligated, to store and monitor any activity and content on any system operated by McKesson, including without limitation the Portal, and the right to disclose such activity and content to third parties, including without limitation law enforcement officers.Pharmacy’semployees and representatives must comply with allPortalaccess policies.
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OWNERSHIP; CONFIDENTIALITY
The Portalmay consist of software, graphics, images, text, data or other materials, all of which are proprietary to McKessonor its vendors and which are protected by copyright, trademark and other intellectual property laws. Pharmacymay not directly or indirectly use, reproduce or display any trademarks associated with the Portalunless otherwise expressly permitted pursuant to a written license agreement between Pharmacyand McKesson. Pharmacyacquiresno right, title or interest in the Portalor any copyrighted works, trademarks or any other intellectual property, or any individual software, graphics, images, text, data or other materials components, except the limited license granted in Section 6.Pharmacymust maintain the confidential nature of all Confidential Information, defined below, during the term of this Program Term Sheetand at all times after the termination of thisProgram Term Sheetand may not use such Confidential Information for Pharmacy’sbenefit (except as expressly permitted under thisProgram Term Sheet), or for the benefit of any third party. Pharmacymust exercise the same degree of care and protection with respect to the Confidential Information as used to maintain the confidentiality of information that Pharmacydeemsconfidential. Pharmacywill use at least a reasonable degree of care and protection and will only disclose the Confidential Information to Pharmacy’semployees on a need-to-know basis. “Confidential Information” includes, without limitation, the Portaland any other information regarded as confidential and proprietary by McKessonor its vendors that is reasonably protected as such, regardless of whether such information is identified as confidential or proprietary in writing. Notwithstanding the above, nothing in this Program Term Sheetrestricts Pharmacy’sright to disclose or use any information thatitcan reasonably document (i) was already known to Pharmacy at the time of McKesson’sdisclosure to Pharmacy, as evidenced by written documents in Pharmacy’spossession,without an obligation of confidentiality, (ii) was generally available to the public or becomes publicly known through no wrongful act by Pharmacy, (iii) was received by Pharmacyfrom a third party who had a legal right to provide it to Pharmacy, or (iv) was developed by Pharmacyindependently of the Confidential Information Pharmacyreceivesfrom McKesson. In the event Pharmacy isrequired to disclose Confidential Information pursuant to a valid request from a court of competent jurisdiction, Pharmacymust notifyMcKessonbefore providing any Confidential Information in order to enable McKessonto seek an appropriate protective order and cooperate with McKessonin seeking to obtain such an order. Any such disclosure must be limited to the specific information required and Pharmacymust use reasonable efforts to obtain confidential treatment of any Confidential Information required to be disclosed. Pharmacy’sobligations as to Confidential Information shall continue until such time as such Confidential Information is no longer maintained as confidential by McKesson.
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REPRESENTATIONS & COVENANTS
Pharmacy represents, warrants and covenants that: (i) it has the authority to enter into this Program Term Sheet; (iii) it operates in accordance with state and/or federal laws and regulations and holds all necessary licenses required to operate lawfully; (iv) it will use the Portalonly for lawful purposes and in accordance with all local, state, federal, and international laws, regulations and ordinances, including without limitation HIPAA. Pharmacy further warrants and covenants that (i) it will not interfere with a third party’s use and enjoyment of the Portal; ii) it will not interfere with or disrupt McKesson’s or its vendors’ security measures; (iii) itwill not interfere with or disrupt networks connected to the Portal, and will comply with all regulations, policies and procedures of such networks; (iv) it will comply with United States law regarding the transmission of technical data exported from the United States and all applicable laws and regulations regarding use of consumer data; (v) it will not make copies of any aspect of the Portal, including the web pages, or any underlying software related to the Portal, and in no event will it be used by Pharmacy for purposes of distribution to the public by sale or other transfer of ownership, or by rental, lease or lending; and, (vi) Pharmacy may not publicly display any aspect of the Portal or any underlying software related to the Portal or Front End Insights.
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DISCLAIMERS & LIMITATIONS
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ThePortal is only a venue to enable Pharmacyto access the content and services of the Front End Insight Program. Neither McKessonnor its vendors are a party to, nor is McKessonor its vendors otherwise involved in, any transactions entered into by Pharmacyand any third party. Furthermore, neither McKessonnor its vendors shall be liable for any dispute that arises between Pharmacyand any consumer or third party.Some parts of the content and servicesof the Front EndInsights Programare provided or supported by third party vendors. McKessondoes not endorse, warrant or guarantee the products or services available through the third-party vendors that are available or linked from the Portal, and McKessonis not an agent or broker or otherwise responsible for the activities or policies of those third-party vendors. If Pharmacyelectsto use content or servicesprovided by third-party vendors on the Portal, Pharmacy issubject to their terms and conditions and privacy policy.
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THE CONTENT ON THEPORTAL AND THE FRONT END INSIGHTS PROGRAM ISTO BE USED FOR INFORMATIONAL PURPOSES ONLY. MCKESSONOR ITS VENDORS SHALL USE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THE ACCURACY OF THE CONTENT, BUT NEITHERMCKESSONNOR ITS VENDORS GUARANTEES THE SEQUENCE, ACCURACY, OR COMPLETENESS OF THE CONTENTAND SHALL NOT BE LIABLE IN ANY WAY TO PHARMACYOR ANYONE ELSE TO WHOM THE CONTENT MAY BE FURNISHED, FOR ANY DELAYS, INACCURACIES, UNAVAILABILITY, ERRORS OR OMISSIONS INTHE CONTENT. ALLCONTENT IS RELIED UPON AT PHARMACY’SOWN RISK AND SOLE DISCRETION.THE PORTALANY CONTENT AND SERVICES PROVIDED, AND ANY RESPONSES, MATERIALS OR INFORMATION PROVIDED, RECEIVED, ACCESSED, PROCESSED, UPLOADED OR DOWNLOADED ON, THROUGH, TOOR FROM THE PORTAL, AND ACCESS TO THE SAME, ARE PROVIDED “AS IS," "WHERE IS," AND "WITH ALL FAULTS" AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER MCKESSONNOR ITS VENDORS MAKES ANY REPRESENTATION, WARRANTY OR CONDITION THAT THE PORTALWILL BE AVAILABLE AT ANY GIVEN TIME, THAT IT WILL OPERATE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT PHARMACYWILL BE ABLE TO USE THE PORTALCORRECTLY.
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Neither McKesson nor its vendors shall have any liability for any claim based upon the use or combination of the Portal and/or Front End Insights Program with other information or content not provided by or approved by McKessonor its vendors. Pharmacy will have no right or authority, at any time, to make any representation or commitment on behalf of McKesson or its vendors, or to make any representations or warranties, guarantees or commitments to any third party, including any consumer,
with respect to the Portal or the Front End Insights program, except as expressly authorized by McKesson or its vendors in writing. Pharmacy issolely responsible for ensuring that itsuse of consumer data is lawful, including without limitation any data that Pharmacymayotherwise have or collect outside the scope of the Front End Insights Program.
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LIMITATION OF LIABILITY
IN NO EVENT SHALL MCKESSON, ITS VENDORS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO PHARMACYOR ANY THIRD PARTY, FOR ANY (i) PUNITIVE, EXEMPLARY, AGGRAVATED, ECONOMIC, SPECIAL, INDIRECT, DIRECT, OR CONSEQUENTIAL DAMAGES, (ii) ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF INFORMATION, LOSS OF DATA, BUSINESS INTERRUPTION OR LOSS OF EXPECTED SAVINGS, (iii) ANY DAMAGES WHATSOEVER RELATING TO PHARMACY’SUSE OF THE PORTAL OR FRONT END INSIGHTS PROGRAMOR INTERRUPTION, DELAYS, ERRORS, OMISSIONS, OR PENALTIES IN ANY WAY RELATED TO THIS PROGRAM TERM SHEET, WHETHER ARISING FROM CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF MCKESSON ORITS VENDORS HAVE BEEN ADVISED AS TO THE POSSIBILITY OF THOSE DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE. IN ANY EVENT, THE MAXIMUM TOTAL AGGREGATE LIABILITY OF MCKESSON ANDITS VENDORS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, FOR ANY CLAIM OR DAMAGE WHATSOEVER, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED ONETHOUSAND DOLLARS ($1,000), WHICH SHALL BE PHARMACY’SSOLE REMEDY EVEN IT IF SHOULD FAIL OF ITS ESSENTIAL PURPOSE.
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INDEMNITY
Pharmacy issolely responsible for the access to, selection and use of the Portaland all items, statements or other content transmitted, posted, received or created on the Portal. Pharmacyagreesto defend, indemnify and hold harmless McKessonits vendors and affiliates, and their respective directors, officers, employees and agents, from and against any and all damages, losses, claims, liabilities, costs and expenses (including legal fees and costs) awarded against or incurred by any of them in connection with: (i) Pharmacy’sbreach of this Program Term Sheetor any ofPharmacy’srepresentations, warranties or covenants in this Program Term Sheet; (ii) Pharmacy’s, or Pharmacy’semployee’s or representative’s, use, misuse or operation of the Portal or Front End Insights; (iii)Pharmacy’sviolation of any applicable law, including without limitation any privacy or data security lawor regulation; and(iv) Pharmacy’suse or misuse of any data. Notwithstanding the foregoing, McKesson, its vendors and affiliates reserve the right to participate reasonably in the defense of any such claim subject toPharmacy’sindemnification obligation.
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TERM AND TERMINATION
This Program Term Sheetcommences as of the latter of (i) Pharmacy’s acceptance of this Program Term Sheet, which may be done through an electronic “opt in”; or (ii) McKesson granting Pharmacy access to the Portal. This Program Term Sheetmay be terminated without cause by either party upon thirty (30) day’s prior written notice. Without limiting any other rights or remedies available to McKesson, this Program Term Sheetshall immediately terminate if any of the following occurs: (i) bankruptcy or insolvency proceedings are taken by or against Pharmacyor if a receiver, trustee or other similar person is appointed over Pharmacy’sassets; (ii) Pharmacy fails to immediately observe or perform any of its obligations under this Program Term Sheet; or (iii) Pharmacy’s franchise relationship with Health Mart terminates.
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MISCELLANEOUS
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Any provision of this Program Term Sheetthat is illegal, invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability and will be modified to the minimum extent necessary to make such provision legal, valid and enforceable while maintaining the intentions of the parties. Should such modification prove to be impractical or impermissible, the offending provision will be severed from the balance of this Program Term Sheet, without affecting the remaining provisions of this Program Term Sheetor affecting the legality, validity or enforceability of such provision in any other jurisdiction.
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McKessonhas no obligation to perform under this Program Term Sheetto the extent and for the period that McKesson or its vendors areprevented from doing so by any cause beyond its reasonable control, including the inability to use or the failure of any third-party telecommunications carrier or other services.
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Pharmacymay not assign this Program Term Sheetwithout the prior written consent of McKesson. McKessonmay assign this Program Term Sheetwithout Pharmacy’sprior written consent. This Program Term Sheetshall be binding upon and shall inureto the benefit of the parties hereto and their respective successors and permitted assigns.
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The parties acknowledge that each is an independent contractor and neither is the agent, representative, partner, fiduciary or trustee of the other party and neither party has the authority to act as or represent itself as an agent of the other party.
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Any notice, demand or other communication required or permitted to be given or made under this Program Term Sheetmust be in writing and willbe sufficiently given, made and deemed received ifdelivered by U.S. mail or electronic mail (“e-mail”) to Pharmacy’scurrent e-mail address reflected in itsPortal registration or to McKessonathealthmartoperations@mckesson.comduring normal business hours on a “Business Day”, meaning any day except Saturday, Sunday or a statutory holiday.
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This Program Term Sheetand any Exhibit, Addendum or Program Term Sheet relating thereto may be executed in hard copy or electronically, in compliance with the provisions of the federal Electronic Signatures in Global and National Commerce Act ("E-SIGN" Act, 15 U.S.C. § 7001 et seq.)or any applicable successor statutes or regulations then in effect that control the manner and means by which a person is bound to a written agreement. If executed in hard copy, this Program Term Sheetand any Exhibit, Addendum or Program Term Sheet relating thereto may be executed in one or more counterparts, all of which shall be considered but one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the parties and delivered to the other party.
The undersigned hereby executes this DATA DELIVERY AUTHORIZATION (this “Authorization”) on behalf of the pharmacy identified above (“Pharmacy”). This Authorization is effective as of the date Pharmacy executes this Authorization (the “Authorization Effective Date”).
Pharmacy and the Point of Sale System Vendor identified above (“POSVendor”) are parties to a certain software license agreement or lease agreement pursuant to which Pharmacy is granted the right to utilize one of POSVendor’s pharmacy point of sale systems (the “Agreement”). In connection with the Agreement, Pharmacy provides POSVendor with a variety of confidential information about its business operations. Pharmacy hereby authorizes POSVendor the right to disclose certain data in accordance with the terms set forth below:
