FOR DRFIRST IPRESCRIBE (MOBILE EPRESCRIBING SERVICES)
DrFirst.com, Inc. (“we” or “us”) offers access to an online electronic prescription system that allows for electronic prescribing and other online tools and related services (collectively, “EP System”), to assist individual physicians, their clinical staff, and their office staff (collectively, “End Users”) to perform a variety of health care activities associates with electronic prescribing and electronic medication management. The EP System has been made available to you by your organization, and your access and use of the EP System is subject to your acceptance of the following terms of use (the “Terms”).
THIS IS A LEGALLY BINDING AGREEMENT between us and you. BY CLICKING “ACCEPT” BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. YOUR CONTINUED ACCESS AND USE OF THE EP SYSTEM SHALL CONSTITUTE YOUR ONGOING AGREEMENT TO BE BOUND BY THE TERMS AND ANY LATER MODIFICATIONS. IF YOU DO NOT AGREE TO ANY OF THE TERMS BELOW, THEN YOU CANNOT ACCESS THE EP SYSTEM. IF YOU ARE IN THE PROCESS OF REGISTERING, YOU SHOULD CLICK “DO NOT ACCEPT” BELOW AND STOP THE REGISTRATION PROCESS.
1. End User Requirements
a. End User Limitations. By agreeing to these Terms, you represent and warrant that for the so long as these Terms are in effect you are:
i. A licensed medical professional with the right to prescribe medicine;
ii. A licensed medical professional in the state or jurisdiction(s) for which you practice;
iii. An employee, agent, or authorized representative of a licensed medical professional for whom you work; or
iv. An authorized employee of a healthcare provider (including a healthcare facility or institution).
For as long as these Terms are in effect, you agree that you shall continue to be an individual authorized by a healthcare provider, facility, or institution to access and use the system. In the event, you no longer qualify as one of the four individuals above, these Terms shall automatically terminate, and you agree that you shall no longer access or use the system. You also agree that you shall not misrepresent your status as one of the four individuals above in the event you are no longer authorized by your organization to access the EP System.
b. End User Verification. You acknowledge that your access and use of the EP System may be subject to successful completion of identity proofing and authentication requirements, which may require the involvement of a third party. These identity proofing and authentication requirements may change from time to time based on evolving regulatory standards, industry guidance, and recommended best practices. You acknowledge and agree that we or our third party vendors may require additional identity proofing and authentication requirements for the duration of these Terms in order to maintain the security of the EP System and the corresponding network.
c. Credential Storage. As part of the registration for the EP System, you have received a unique user identifier (“Credential”). You are responsible for maintain the confidentiality of your Credential and associated account information, and agree to be responsible for any misuse of your account as a result of your negligence. You agree that you will not provide your Credential and password to anyone else at any point in time for any purpose, and to notify us immediately in the event your user I.D. or password is lost or stolen so we may update your account and maintain the security of the EP System.
d. Two-Factor Authentication for Electronic Prescribing of Controlled Substances (“EPCS”). In the event you are using the EPCS functionality within the EP System, you agree that you will not use the same device for both sending a prescription and for identify verification required for two-factor authentication.
2. Access and Use of the Services.
a. Access to the Services. For so long as you meet the requirements under the Terms and your organization has subscribed to access the EP System, we will make the EP System available for you for your use in the provision of treatment, payment, and healthcare operations to your patients. You may access the EP System through our software, or we may make the EP System available through alternative means, such as through a mobile application. You may provide us with ideas, suggestions, or comments, regarding the EP System, and the rights to those ideas shall vest with DrFirst, and DrFirst may assign those as or appropriate to its third party vendors.
b. Limitations on Use of the Services. If you are an End User, then the rights to access and use granted to you by these Terms will remain in force for so long as these Terms remain in effect or until your registration is cancelled or terminated. You may not: (i) use the EP System as a service bureau; (ii) make the EP System available to any other person, entity, or organization; (iii) copy, reverse engineer, decompile, or otherwise attempt to perceive the source code; or (iv) resell or sublicense access to or use of the EP System or any of the rights granted to you by a third party. You further agree that you shall not use any means, program, or device, or permit any other person to use any means, program, or device, including but not limited to advertising, instant messaging, and pop-up ads, to influence or attempt to influence, through economic incentives or otherwise, the decision of a prescriber to write a prescription for a certain medication or send the prescription to a certain pharmacy if such means program or device is triggered by , initiated by, or is in specific response to the input, selection, or act of a user and if such prescription shall be sent through the EP System.
c. Availability of certain Data Sources. You acknowledge that the EP System relies upon connections to third party pharmacies, pharmacy chains, pharmacy benefit managers, health care payors, and other similar entities that provide access to medication history information and provide routing of electronic prescriptions and other electronic transactions in relation to the EP System (“Data Sources”). You acknowledge and agree that any Data Source in its sole discretion may elect not to receive certain prescriptions or other electronic transactions from you, and that any Data Source may disconnect or be unavailable at any point in time. We do not and cannot guarantee any minimum number of Data Sources available or connected, nor can we guarantee certain number of matches for medication history information.
d. Audit Rights. We require the right to access, inspect, and review records related to your use of any data provided to us from our Third Party vendors, including but not limited to DrFirst and Surescripts.
e. Confidential Information. You will receive information that is considered proprietary and that has not made available or otherwise disclosed to the public (“Confidential Information”). This Confidential Information may come from us or a Third Party providing a portion of the EP System. You agree that you will not use or disclose Confidential Information directly or indirectly at any time for any purpose, except in accordance with your access and use of the EP System. You agree to hold all Confidential Information in strict confidence and shall only disclose Confidential Information except in accordance with your access and use of the EP System, to individuals who have agreed to maintain the confidentiality of the information.
3. Clinical and Regulatory Concerns
a. Prescribing Decisions and Professional Responsibility. We provide the EP System as a tool for our Users to conduct electronic prescribing and other associated transactions. It is the responsibility of you and your staff to verify the information that it inputs to the system or the information returned as part of the medication history information. You agree to confirm the prescription benefit and medication history information with your patient prior to providing medical services based on that information and you agree to use your professional judgment in the provision of such care. The EP System is not a substitute for your standard practice or professional judgment, and any decision with regard to the appropriateness of treatment, the validity or reliability of information is your sole responsibility. YOU FURTHER WARRANT THAT ALL TREATMENT DECISIONS ARE BASED ENTIRELY UPON YOUR PROFESSIONAL MEDICAL JUDGMENTS, YOUR EMPLOYEES AND AGENTS AND OTHER PROFESSIONALS WITH PRIVILEGES TO PROVIDE HEALTH CARE ITEMS AND SERVICES TO YOUR PATIENTS.
b. Clinical Support Information. The EP System provides information and reminders concerning drug interactions, allergies, dosages, as well as general health-care related information and resources such as educational information and research studies. You acknowledge and agree that the information provided is for informational and educational purposes only. The information is not intended to provide professional advice, diagnosis, or treatment, or otherwise substitute the User’s professional judgment. We disclaim all warranties, express or implied, surrounding the accuracy or suitability of the information provided by the EP System, including the accuracy of completeness of the information. You assume the risk and responsibility for relying upon or using the information, or determining to proceed in a course of professional advice, diagnosis, or treatment, not in accordance with the educational information provided. You agree to exercise your own professional judgment in determining the appropriate course of action based on that specific patient in response to the clinical support information provided.
c. Patient Consent. You acknowledge and agree that certain federal and state laws may restrict the use and disclosure of certain types of health information. You acknowledge and agree that you shall obtain all necessary consents, authorizations, and releases from individuals required to use the EP System, and that you, or your organization, is solely responsible for obtaining the appropriate permissions to utilize the EP System. By using the system, you further represent and warrant that you have all necessary permissions to provide such information to us. You agree that we may provide additional functionality as part of the EP System, which may require different or additional consents from consents you may already have on file. We work with certain third parties in order to provide the EP System, and you agree to comply with any changes to privacy and patient consent policies instituted by those third parties. You further agree that your use of the EP System shall comply with all applicable laws, including those related to privacy, security, and confidentiality of protected health information.
4. Use of Physician Information
a. Use of Physician Information. Certain Third Party Vendors providing the EP System may use some of your personal information or personal identifiers to contact you, but they will not use, sell, disclose, or provide the information to contact you regarding commercial solicitations nor will they connect you to us. We also reserve the right to provide certain account or identifiable information to Third Party vendors when the law or legal process requires it, or as may be necessary to protect our rights or property, or that of others.
5. Modifications to the Services.
a. General Modifications. The EP System may be modified with or without notice to you, so long as it continues to provide the basic functionality. Your continued use of the EP System following the notice of such changes will indicate your acknowledgement of such changes. If you object to any such changes, your sole recourse will be to terminate these terms.
b. Addition of Third Party Services. Throughout the duration of these Terms, the EP System may provide you the opportunity to add, access, or otherwise use additional services operated by third parties (“Third Party Services”). Certain Third Party Services will require you or your organization to amend its existing services agreement with us and require incurring an additional fee, while other Third Party Services may be provided as existing enhancements to the EP System. We may need to provide your information to a Third Party Service, in order to provide that enhanced functionality to you. The Third Party Service may require additional terms of service to be provided or presented to you prior to your usage of the enhanced functionality.
c. Modifications to the Terms. These Terms may be amended or changed from time to time, as necessary to accommodate changes to the services, the addition of Third Party Services, or other updates as may be necessary. We will attempt to notify you of any changes in advance by email, to the extent we have your email address, and by posting notice on the EP System. You understand and agree that your continued use of the EP System after being provided with such notice shall constitute acceptance of the modifications. In the event you object to any such changes, your sole recourse shall be to terminate these Terms. You agree that in the event a Third Party Service requires a separate terms of service that conflict with these Terms, the terms of service provided by the Third Party Service shall govern and control your access to the Third Party Service within the EP System.
6. Termination of the Services.
a. Termination. Our third party vendors may temporarily suspend access or terminate your access to the EP System with or without notice to you at any time for any reason.
b. Survival. In the event of termination of these Terms, the following sections shall survive: 2.e, 7, 8, and 9.
7.Disclaimers; Limitation of Liability.
a. Disclaimer of Warranty. YOU ARE SOLELY RESPONSIBLE FOR ASSESSING THE SUITABILITY OF THE EP SYSTEM, THE THIRD PARTY SERVICES, AND THE INFORMATION CONTAINED IN THE EP SYSTEM AND THIRD PARTY SERVICES. THE EP SYSTEM, INCLUDING ALL INFORMATION, CONTENT, MATERIALS AND SERVICES, AND THIRD PARTY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE AND ALL THIRD PARTIES PROVIDING SERVICES TO US AS PART OF THE EP SYSTEM DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, AND DATA ACCURACY. WE AND ALL THIRD PARTIES PROVIDING SERVICES TO US DO NOT WARRANT THAT USE OF EP SYSTEM BY USERS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
b. Limitation of Liability. IN NO EVENT SHALL WE OR THIRD PARTIES PROVIDING SERVICES AS PART OF THE EP SYSTEM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES, OR FOR LOSS OF PROFITS OR DAMAGES ARISING DUE TO PHYSICAL INJURY, LOSS OF LIFE, BUSINESS INTERRUPTION, OR FROM LOSS, INCOMPLETENESS, OR INACCURACY OF INFORMATION, TO THE EXTENT ANY OF THE FOREGOING ARISES IN CONNECTION WITH THESE TERMS OR YOUR USE OR INABILITY TO USE EP SYSTEM, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF WE WERE ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE. IN NO EVENT WILL ANY THIRD PARTIES PROVIDING SERVICES AS PART OF THE EP SYSTEM HAVE ANY LIABILITY TO YOU. YOU ARE SOLELY RESPONSIBLE FOR PERSONAL INJURY OR DEATH THAT MAY OCCUR AS A RESULT OF THE USE OF THE EP SYSTEM. YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL TERM BETWEEN YOU AND US RELATING TO THE PROVISION OF THE EP SERVICES TO YOU AND THAT WE WOULD NOT PROVIDE THE EP SERVICES TO YOU WITHOUT THIS LIMITATION.
8. Indemnification.
a. Medication History Information Indemnification. The EP System provides formulary, eligibility, and medication history information regarding your patients. Unless otherwise notified by you not to pull the information in the EP System, a request will be made on your behalf to all sources to which the EP System has access to provide this information to you in advance of the next patient visit. Since not all information may be available and since available technology is used to match patient identities, false matches, errors, and omissions may occur in the prescription benefit and medication history information provided. You are responsible for verifying the information provided prior to relying upon or using the information in diagnosing or treating the patient. You acknowledge and agree that the formulary, eligibility, and medication history information is not complete or accurate, and we, DrFirst, Surescripts and the Data Sources do not provide any representations or warranties with respect to the accuracy and completeness of the prescription benefit or medication history information. Furthermore, you agree to release and hold harmless us, DrFirst, Surescripts, and the Data Sources from any liability, cause of action, or claim related to the completeness or lack thereof of the medication history information. In addition, you agree to confirm the accuracy of all information with your patient prior to providing any medical services.
b. General Indemnification. You agree to indemnify, hold harmless, and, at our option, defend us, DrFirst, Surescripts, and other third party vendors providing the EP System from and against any losses, including reasonable attorneys’ fees, resulting from any violation of these Terms or activity related to your account, due to your negligent or wrongful conduct.
9. General Terms
a. Third Party Beneficiaries. It is expressly understood that the following entities are third party beneficiaries of these Terms: DrFirst, Surescripts. Furthermore, the Data Sources are third party beneficiaries with respect to section 8.a.
b. Mobile Application Users. As between you and DrFirst, you are responsible for any and all charges incurred as a result of any applications on your mobile device accessing a mobile data network. You are solely responsible for ensuring your use of the Application is in compliance with any terms of use agreed upon by you and your mobile device provider or mobile network provider