The Health Mart® Digital Platform ("Digital Platform") is provided by Health Mart® Systems, Inc. and its affiliates ("Health Mart®" or "we") and its third party vendors. This Digital Platform is operated by a third party vendor to enable you to use the Your Health Mart® services, which allows you to access certain clinical, educational and operational information ("Content") and various prescription and pharmacy related services ("Services"), such as services and reports related to product purchasing, ordering and dispensing, as well as other products (collectively, "YHM"). Access and use of the Digital Platform is subject to the terms and conditions of the Franchise Agreement between you and Health Mart® (the "Franchise Agreement") and this Health Mart® Digital Platform "Your Health Mart®" Program Term Sheet ("Program Term Sheet").
1.1 This Program Term Sheet is conditional upon you having completed your request to access the Digital Platform by completing the Digital Platform Enrollment Form and having been notified by Health Mart® in writing via electronic mail ("e-mail") that your application for access has been granted. Health Mart® retains the right both to refuse your registration and to terminate this Program Term Sheet at its sole discretion upon notice to you.
1.2 You acknowledge and agree that Health Mart® may use other vendors and subcontractors in providing the services contemplated hereunder.
1.3 This Program Term Sheet is binding on you and the legal entity you represent as identified in the Franchise Agreement. You are responsible for compliance with the terms of this Program Term Sheet and all other acts and omissions by all of its employees, agents, contractors, and representatives.
1.4 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 of this Program Term Sheet, and enters into this Program Term Sheet on behalf of the legal entity you represent freely, knowingly, and without coercion, intending to be legally bound thereby.
1.5 To be eligible to enter into this Program Term Sheet, the legal entity you represent is required to be a Health Mart® pharmacy.
1.6 You hereby acknowledge and agree that to enable certain functionalities of YHM, Health Mart® will be required to obtain the pertinent claims data from your pharmacy management system to display on the Digital Platform. You hereby authorize McKesson Pharmacy Systems LLC ("MPS") to send protected health information to us and all other pharmacy system data we need in order for us to perform the Services ("Delivered Data"). You shall promptly advise us in writing of the existence of any restrictions upon the use or disclosure of any Delivered Data. All Delivered Data shall be used by us pursuant to this Program Term Sheet. We shall be permitted, even after the expiration or termination of this Program 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 set forth in this Program Term Sheet. You hereby grant to us the right to create derivative works and/or compilations based on the Delivered Data.
1.7 You must provide accurate, truthful and complete contact information and other information about your business, as required on the Digital Platform Enrollment Form, or such other registration application as Health Mart® may direct you to use in order to apply for access to the Digital Platform. You must advise Health Mart® of any changes to such information as soon as is reasonably possible. From time to time, Health Mart® may modify, in its sole discretion, the information required from you for your application for registration. Upon such a modification by Health Mart® and notice to you, you must provide the additional or updated information to Health Mart® within a reasonable period of time as requested.
1.8 After completing the registration process and upon acceptance of your application for registration by Health Mart®, you will be contacted by email by a Health Mart® representative and will be provided with a unique and password to access the Digital Platform (the "Key").
1.9 You must maintain the Key(s) as secret and confidential information and must not, directly or indirectly, disclose the Key(s) to any person, nor permit any other person, except your authorized employees and representatives, to access the Digital Platform directly or indirectly. You must immediately notify Health Mart® in the event of any unauthorized access to the Digital Platform or unauthorized use of the Key(s) or any other breach of security that is known or becomes known to you. You will be liable to Health Mart® and its vendors for any use or misuse of your Key and access to and activity in the Digital Platform by anyone using your
2.1 Subject to acceptance of your application to access the Digital Platform, and your compliance with this Program Term Sheet, Health Mart® hereby grants to you a limited, non-transferable, nonexclusive, license to use, access and display the Digital Platform solely for your internal business purposes and subject to the terms and conditions of this Program Term Sheet.
2.2 You may not send unsolicited messages (e.g., spam) through the Digital Platform, or post or submit information containing viruses, or any computer programs that result or may result in the damage, interference with or interception or expropriation of this Digital Platform, or any related system, software, hardware, data or other information.
2.3 You may not collect or use any contact or other information of any individual or consumer that is not affiliated with your pharmacy that may be contained on or available through the Digital Platform for any purposes other than as expressly permitted in this Program Term Sheet.
2.4 You may not use any robot, spider or other automatic device or manual process to monitor or copy the Digital Platform web pages or any content contained on or available through the Digital Platform, including without limitation the Content.
2.5 You may 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 Digital Platform by any person other than your authorized employees and representatives. Health Mart® retains the right, but is not obligated, to store and monitor any activity and content on any system operated by Health Mart®, including without limitation the Digital Platform, and the right to disclose such activity and content to third parties, including without limitation law enforcement officers.
2.6 You must adhere to all applicable local, state and federal laws in accessing and using the Digital Platform, including but not limited to those laws and regulations regarding:
3.1 The Digital Platform and YHM may consist of software, graphics, images, text, data or other materials, all of which are proprietary to Health Mart®, its affiliates or its vendors and which are protected by copyright, trademark and other intellectual property laws. You may not directly or indirectly use, reproduce or display any trademarks associated with the Digital Platform or YHM unless otherwise expressly permitted pursuant to a written license agreement between you and Health Mart®. You acquire no right, title or interest in the Digital Platform or YHM or 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 2.1.
3.2 You must maintain the confidential nature of all Confidential Information, defined below, during the term of this Program Term Sheet and at all times after the termination of this Program Term Sheet and may not use such Confidential Information for your benefit (except as expressly permitted under this Program Term Sheet), or for the benefit of any third party. You must exercise the same degree of care and protection with respect to the Confidential Information as used to maintain the confidentiality of your information that you deem confidential. You will use at least a reasonable degree of care and protection and will only disclose the Confidential Information to your employees on a need-to- know basis. "Confidential Information" includes, without limitation, the Digital Platform and any other Health Mart® information regarded as confidential and proprietary by Health Mart® or 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 Sheet restricts your right to disclose or use any information that you can reasonably document (i) was already known to you at the time of Health Mart®’s disclosure to you, as evidenced by written documents in your possession, without an obligation of confidentiality, (ii) was generally available to the public or becomes publicly known through no wrongful act by you, (iii) was received by you from a third party who had a legal right to provide it to you, or (iv) was developed by you independently of the Confidential Information you receive from Health Mart®. In the event you are required to disclose Confidential Information pursuant to a valid request from a court of competent jurisdiction, you must notify Health Mart® before providing any Confidential Information in order to enable Health Mart® to seek an appropriate protective order and cooperate with Health Mart® in seeking to obtain such an order. Any such disclosure must be limited to the specific information required and you must use reasonable efforts to obtain confidential treatment of any Confidential Information required to be disclosed. Your obligations as to Confidential Information shall continue until such time as such Confidential Information is no longer maintained as confidential by Health Mart®.
4.1 The Digital Platform is only a venue to enable you to access the Content and Services.. Neither Health Mart® nor its vendors are a party to, nor is Health Mart® or its vendors otherwise involved in, any transactions entered into by you and any consumer. Furthermore, neither Health Mart® nor its vendors shall be liable for any dispute that arises between you and any consumer or third party.
4.3 THE CONTENT ON THE DIGITAL PLATFORM AND/OR YHM IS TO BE USED FOR INFORMATIONAL PURPOSES ONLY. YOU ACKNOWLEDGE THAT THE CONTENT IS IN NO CASE TO BE USED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL OR LEGAL ADVICE NOR IS IT INTENDED TO BE RELIED UPON BY ANY PERSON OR ENTITY, INCLUDING ANY CONSUMER, FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT. HEALTH MART® OR ITS VENDORS SHALL USE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THE ACCURACY OF THE CONTENT, BUT NEITHER HEALTH MART®, ITS AFFILIATES, NOR ITS VENDORS GUARANTEES THE SEQUENCE, ACCURACY, OR COMPLETENESS OF THE CONTENT AND SHALL NOT BE LIABLE IN ANY WAY TO YOU, YOUR CONSUMERS, OR ANYONE ELSE TO WHOM THE CONTENT MAY BE FURNISHED, FOR ANY DELAYS, INACCURACIES, UNAVAILABILITY, ERRORS OR OMISSIONS IN THE CONTENT. SUCH CONTENT IS RELIED UPON AT YOUR OWN RISK AND SOLE DISCRETION.
4.4 Neither Health Mart®, its affiliates, nor its vendors shall have any liability for any claim based upon the use or combination of the Digital Platform or YHM with other information or content not provided by or approved by Health Mart® or its vendors or for the use of any release other than a current, unaltered release of the Digital Platform. You will have no right or authority, at any time, to make any representation or commitment on behalf of Health Mart®, its affiliates or its vendors, or to make any representations or warranties, guarantees or commitments to any third party, including any consumer, with respect to the Digital Platform or YHM, except as expressly authorized by Health Mart® or its vendors in writing.
4.5 THE DIGITAL PLATFORM, INCLUDING WITHOUT LIMITATION YHM AND ANY CONTENT AND SERVICES PROVIDED, AND ANY RESPONSES, MATERIALS OR INFORMATION PROVIDED, RECEIVED, ACCESSED, PROCESSED, UPLOADED OR DOWNLOADED ON, THROUGH, TO OR FROM THE WEBSITE, 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 HEALTH MART®, ITS AFFILIATES, NOR ITS VENDORS MAKES ANY REPRESENTATION, WARRANTY OR CONDITION THAT THE DIGITAL PLATFORM OR YHM WILL BE AVAILABLE AT ANY GIVEN TIME, THAT IT WILL OPERATE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT YOU WILL BE ABLE TO USE THE DIGITAL PLATFORM CORRECTLY.
4.6 You are solely responsible for ensuring that your use of consumer data is lawful, including without limitation any data that you may otherwise have or collect outside the scope of YHM and the Services.
5.1 IN NO EVENT SHALL HEALTH MART®, ITS VENDORS, SUPPLIERS, AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU, OR ANY CONSUMER, OR ANY OTHER 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 YOUR USE OF YHM OR THE DIGITAL PLATFORM (INCLUDING CONTENT AND SERVICES), OR INTERRUPTION, DELAYS, ERRORS, OMISSIONS, OR PENALTIES IN ANY WAY RELATED TO THIS PROGRAM TERM SHEET, THE DIGITAL PLATFORM, WHETHER ARISING FROM CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF HEALTH MART®, ITS VENDORS, SUPPLIERS OR AFFILIATES HAVE BEEN ADVISED AS TO THE POSSIBILITY OF THOSE DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE.
5.2 IN ANY EVENT, THE MAXIMUM TOTAL AGGREGATE LIABILITY OF HEALTH MART®, ITS VENDORS, SUPPLIERS OR AFFILIATES, 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 TEN THOUSAND DOLLARS ($10,000), WHICH SHALL BE YOUR SOLE REMEDY EVEN IT IF SHOULD FAIL OF ITS ESSENTIAL PURPOSE.
5.3 You understand that these limitations form a part of the basis of the bargain in allowing you to use the Digital Platform.
You are responsible for your own computer hardware and software and connection to the Internet for access to the Digital Platform and the fees set forth below.
Access to the Digital Platform is free of charge Health Mart® may implement a fee structure for all or part of the Digital Platform in the future upon thirty (30) days advanced notice to you.
8.1 You represent, warrant and covenant that: (i) your registration on the Digital Platform Enrollment Form and the related information you provide on your application is true, accurate and complete in all material respects; (ii) you have the authority to enter into this Program Term Sheet; (iii) you are a bona fide pharmacy in business under the appropriate state and/or federal laws and regulations and hold all necessary licenses required to operate lawfully; and (iv) you will use the Digital Platform only for lawful purposes and in accordance with all local, state, federal, and international laws, regulations and ordinances, including without limitation HIPAA.
8.2 You further warrant and covenant that (1) you will not interfere with a third party’s use and enjoyment of the Digital Platform or YHM; (2) you will not interfere with or disrupt Health Mart®’s or its vendors’ security measures; (3) you will not interfere with or disrupt networks connected to the Digital Platform, and will comply with all regulations, policies and procedures of such networks; (4) you 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; (5) you may not make copies of any aspect of the Digital Platform or YHM, including the web pages, or any underlying software related to the Digital Platform, except as maybe expressly permitted by this Program Term Sheet, and in no event for purposes of distribution to the public by sale or other transfer of ownership, or by rental, lease or lending; and, (6) you may not perform publicly or publicly display any aspect of the Digital Platform or any underlying software related to the Digital Platform or YHM.
You are solely responsible for the access to, selection and use of the Digital Platform and all items, statements or other content transmitted, posted, received or created using your Key(s), even if transmitted, posted, received or created by someone else. You agree to defend, indemnify and hold harmless Health Mart®, its 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) your breach of this Program Term Sheet or any of your representations, warranties or covenants in this Program Term Sheet; (ii) your, or your employee’s or representative’s, use, misuse or operation of the Digital Platform or YHM; (iii) any use or misuse of the Key(s); (iv) any transaction entered into between you and a consumer; (v) your violation of any applicable law, including without limitation any privacy or data security law or regulation, and (vi) your use or misuse of any consumer data. Notwithstanding the foregoing, Health Mart®, its vendors and affiliates reserve the right to participate reasonably in the defense of any such claim subject to your indemnification obligation.
Any provision of this Program Term Sheet that 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 Sheet or affecting the legality, validity or enforceability of such provision in any other jurisdiction.
Health Mart® has no obligation to perform under this Program Term Sheet to the extent and for the period that Health Mart® is prevented 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.
12.1 This Program Term Sheet commences as of the date that you submit your application for registration to access and use the Digital Platform and agree to this Program Term Sheet, and will continue until otherwise terminated under this Program Term Sheet. This Program Term Sheet may be terminated without cause by either party upon thirty (30) day’s prior written notice. This Program Term sheet will automatically terminate, regardless of Term, in the event your franchise relationship with Health Mart® terminates.
12.2 Without limiting any other rights or remedies available to Health Mart® under this Program Term Sheet, at law or in equity, this Program Term Sheet shall immediately terminate if any of the following occurs:
This Program Term Sheet and the Digital Platform’s posted policies constitute the entire agreement between the parties with respect to the access to and use of the Digital Platform, and supersede all prior written or oral negotiations, agreements, representations and other communications between the parties with respect to the Digital Platform, provided that the parties acknowledge they are subject to other agreements covering different subjects areas, including the Franchise Agreement, and such agreements shall remain in effect. To the extent there is a conflict between this Program Term Sheet and the Franchise Agreement, the Franchise Agreement shall control.
You may not assign this Program Term Sheet without the prior written consent of Health Mart®. Health Mart® may assign this Program Term Sheet without your prior written consent. This Program Term Sheet shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
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.
This Program Term Sheet shall be governed by and construed in accordance with the laws of the State of California and the federal laws of the United States, without regard to conflicts of laws principles. This Program Term Sheet and access to the Digital Platform shall be deemed to have been performed and occurred in the State of California and the courts of that State shall have exclusive jurisdiction to entertain any action arising under this Program Term Sheet. You hereby irrevocably submit to the exclusive jurisdiction and venue of the state courts of the State of California, located in the County of San Francisco, and the federal courts located in the Northern District of California and waive any objections as to personal jurisdiction, venue and forum nonconveniens.
17.1 Any notice, demand or other communication required or permitted to be given or made under this Program Term Sheet must be in writing and will be sufficiently given, made and deemed received if:
17.2 Health Mart®’s contact information for purposes of providing notice is as follows: Health Mart®, Inc., One Post Street, San Francisco, CA 94104 with a copy to McKesson Corporation, Legal Department, 33 rd Floor, One Post Street, San Francisco, CA 94104. Your contact information for purposes of providing notice will the information submitted by you on your request to access the Digital Platform.
The division of this Program Term Sheet into Sections and the insertion of headings are for convenience or reference only and shall not affect the construction or interpretation of the Program Term Sheet. Unless the context otherwise requires, words using the singular include the plural and vice versa, and words importing gender includes all genders. When used in this Program Term Sheet, the word "including" (or includes) means "including (or includes) without limitation." Any reference in this Program Term Sheet to a "person" will be deemed to include an individual, corporation, partnership, trust, unincorporated organization, government and the heirs, executors, administrators or other legal representation of an individual.
Sections 1.3, 3, 4, 5, 8, 9, 10, 11, and 13-20 shall survive the termination or expiry of this Program Term Sheet.
20.1 Health Mart® reserves the right to modify this Program Term Sheet upon thirty (30) days prior written notice to you via email or posting upon your login or access to the Digital Platform.
20.2 In all cases other than those described in Section 20.1, this Program Term Sheet may not be modified unless agreed to in writing by both parties. Any consent by a party to, or waiver of a breach by the other, whether express or implied, shall not constitute a consent to or waiver of or excuse for any other different or subsequent breach unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused.