Claritas Rx Inc. SaaS Agreement

This SaaS Agreement (this “Agreement”) is by and between Claritas Rx Inc, with its principal place of business at 611 Gateway Blvd, Suite 201, South San Francisco, CA 94080 (“Claritas Rx”) and the Client identified in the applicable Order Form (“Client”). This Agreement is effective, and Client agrees to be bound by this Agreement, as of the Effective Date specified in the applicable Order Form incorporating this Agreement (“Effective Date”). This Agreement includes each applicable Order Form. Claritas Rx and Client may be referred to herein collectively as the “Parties” or individually as a “Party.”

This Agreement was last updated on August 5, 2025.

RECITALS

Claritas Rx offers Output via its (or if enabled, its client’s) use of the Claritas Rx Platform, a data analytics platform for the pharmaceutical industry; and
Client desires to enable Claritas Rx to generate Output for Client via Claritas Rx’ use of the Claritas Rx Platform (as set forth in the Order Form), and Claritas Rx is willing to do so, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

DEFINITIONS
1. “Authorized User” means an employee or contractor whom Client has authorized to Use the Claritas Rx Platform.
2. “Benchmark Data” means any data that is derived or aggregated in deidentified form from any Client Materials and Output including, without limitation, metadata regarding provider, hub, payer, and/or pharmacy activity and any data related to averages, totals, means, medians, modes, ranges, percentages, rates, and other statistical or usage data or trends with respect to the Claritas Rx Platform. For clarity, Benchmark Data will not include any Personal Information.
3. “Claritas Rx IP” means the Claritas Rx Platform, the underlying software provided in conjunction with the Claritas Rx Platform, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Claritas Rx Platform (including without limitation the algorithms, models, machine learning and other technology which analyzes, modifies, and transforms data therein) or any Documentation, Benchmark Data, Usage Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
4. “Claritas Rx Platform” means Claritas Rx’s online, proprietary pharmaceutical-related data analytics platform, as more particularly described or identified in the applicable Order Form.
5. “Client Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Client (including without limitation as provided by a third party data source at the direction of Client) through the Claritas Rx Platform or to Claritas Rx in connection with Client’s Use of the Claritas Rx Platform, but excluding, for clarity, Benchmark Data, Usage Data, and any other information, data, data models, content or materials owned or controlled by Claritas Rx and made available through or in connection with the Claritas Rx Platform. For clarity, Client Materials include data provided by a third-party data source acting on behalf of Client to Claritas Rx for Claritas Rx to transmit to the Claritas Rx Platform to generate Output for Client in connection with this Agreement.
6. “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Claritas Rx to Client (including any revised versions thereof) relating to the Claritas Rx Platform, which may be updated from time to time upon notice to Client.
7. “Personal Information” means any information relating to an identified or identifiable where such information is protected as “personal information” or “protected health information” under applicable privacy laws, including the California Consumer Privacy Act, as amended, or the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009 and the regulations promulgated thereunder.
8. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
9. “Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Client and accepted by Claritas Rx in writing; or (iii) quote issued by Claritas Rx and accepted by Client, in each case which references this Agreement and sets forth the applicable Claritas Rx Platform offering to be provided by Claritas Rx.
10. “Output” means any reports or other pharmaceutical information generated by the Claritas Rx Platform from Client’s use (or Claritas Rx’s use on behalf of Client) thereof.
11. “Person” means any individual, corporation, partnership, trust, limited liability Claritas Rx, association, governmental authority or other entity.
12. “Security Incident” means a material breach of Claritas Rx’s systems due to Claritas Rx’s failure to implement reasonable data security safeguards and which results in the unauthorized destruction of, loss of, alteration of, disclosure of, or access to Client’s Personal Information.
13. “Usage Data” means aggregated and anonymized information and user metrics regarding Client’s access or usage of the Claritas Rx Platform. Usage Data is the property of Claritas Rx and may only be used for to improve, develop, and operate the Claritas Rx Platform. Claritas Rx will not use Usage Data in a manner that identifies Client, any Authorized User, or any individual as the source or subject of the Usage Data.
14. “Use” means to use and/or access the Claritas Rx Platform in accordance with this Agreement and the Documentation.
CLARITAS RX PLATFORM; ACCESS AND USE.
1. Claritas Rx Platform. Subject to the terms and conditions of this Agreement, Claritas Rx hereby (i) agrees to utilize the Claritas Rx Platform to generate Output for Client from certain Client Materials, and (ii) if direct access to the Claritas Rx Platform is provided by Claritas Rx to Client (e.g., via the provision of Claritas Rx Platform account credentials to Client), in Claritas Rx’s sole discretion, then Claritas Rx grants Client a limited, non-exclusive, non-transferable (except in compliance with Section 11(f)) right to Use the Claritas Rx Platform, in each case during the Term, solely for Client’s internal business purposes.
2. Use Restrictions. Client will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Claritas Rx Platform in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Claritas Rx Platform or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Claritas Rx Platform, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Claritas Rx Platform or data (including personal data) available via the Claritas Rx Platform to any other Person, or otherwise allow any Person to use the Claritas Rx Platform for any purpose other than for the benefit of Client in accordance with this Agreement; (v) use the Claritas Rx Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Claritas Rx Platform, or any data or content contained therein or transmitted thereby; (vii) access or search the Claritas Rx Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Claritas Rx Platform features provided by Claritas Rx for use expressly for such purposes; or (viii) use the Claritas Rx Platform, Documentation or any other Claritas Rx Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Claritas Rx Platform.
3. Authorized Users. Client will not allow any Person, other than Authorized Users for whom Claritas Rx has provided direct access to the Claritas Rx Platform pursuant to Section 2(a)(ii), to Use the Claritas Rx Platform. Client may permit such Authorized Users to Use the Claritas Rx Platform, provided that Client ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Client is responsible for acts or omissions by Authorized Users in connection with their Use of the Claritas Rx Platform. Client will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Claritas Rx Platform in accordance with customary security protocols, and will promptly notify Claritas Rx if Client knows or reasonably suspects that any user name and/or password has been compromised. Each account for the Claritas Rx Platform may only be accessed and used by the specific Authorized User for whom such account is created.
4. Third-Party Services. Certain features and functionalities within the Claritas Rx Platform may allow Client and its Authorized Users to interface or interact with, integrate with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Claritas Rx Platform. Claritas Rx does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Claritas Rx Platform or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Client is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Client to use the Third-Party Services in connection with the Claritas Rx Platform.
5. Third-Party Data Sources. Client may notify (or direct) a third party to provide, and Claritas Rx may receive from a third party acting on behalf of Client (a “Third-Party Data Source”), Client Materials which Claritas Rx may then use or transmit to the Claritas Rx Platform to generate Output. Client represents and warrants that it has, and has caused the Third-Party Data Source to have, all necessary rights, authority and licenses to direct such Third-Party Data Source, and for such Third-Party Data Source, to provide, such Client Materials to Claritas Rx, and that Claritas Rx’s use of such Client Materials (notwithstanding its receipt from the Third-Party Data Source) will not violate any applicable laws or regulations or infringe or misappropriate any third party’s intellectual property rights.
6. Sharing with Third-Party Data Recipients at Client’s Request. If Client requests or directs that Claritas Rx share any of the Client Materials or Output with third parties, contractors or service providers of Client (each, a “Third-Party Data Recipient”), Client shall be liable for all acts and omissions of such Third-Party Data Recipients and shall indemnify Claritas Rx for any liabilities, damages, claims, fines, penalties, costs and expenses (including costs of defense or settlement and reasonable attorneys’, consultants’ and experts’ fees) incurred by Claritas Rx arising from or relating to a Third-Party Data Recipient’s use of the Client Materials or Output by the Third-Party Data Recipients. If Client directs Claritas Rx to share de-identified Client Materials or Output with a Third-Party Data Recipient, Client will require the Third-Party Data Recipient not to re-identity or attempt to re-identify the de-identified Client Materials or Output. Client will also be responsible for ensuring that the Third-Party Data Recipient has and will implement and maintain administrative, physical and technical safeguards that prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of the Client Materials or Output.
7. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Claritas Rx reserves and, as between the Parties will solely own, the Claritas Rx IP and all rights, title and interest in and to the Claritas Rx IP. No rights are granted to Client hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
8. Feedback. From time to time Client or its employees, contractors, or representatives may provide Claritas Rx with suggestions, comments, feedback or the like with regard to the Claritas Rx Platform (collectively, “Feedback”). Client hereby grants Claritas Rx a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Claritas Rx’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Claritas Rx Platform.
9. No Professional Services. This Agreement is for Claritas Rx’s use of the Claritas Rx Platform to generate Output for Client (and for Client’s use of the Claritas Rx Platform if such access is provided by Claritas Rx), and any professional services (including without limitation Claritas Rx personnel providing implementation or configuration services, such as for a third-party application layer) provided by Claritas Rx to Client will be governed by a separate, mutually-executed agreement for such professional services (e.g., a Master Services Agreement and associated statement(s) of work). Claritas Rx has no obligation to provide any professional services under this Agreement.
FEES AND PAYMENT.
1. Fees. Client will pay Claritas Rx the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction.
2. Payments. Payments due to Claritas Rx under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Claritas Rx or such other payment method mutually agreed by the Parties in an Order Form. Client may not set off, discount or otherwise reduce or refuse to pay any amounts due under this Agreement. If Client fails to make any payment when due, Claritas Rx may suspend Claritas Rx Platform until all payments are made in full. Client will reimburse Claritas Rx for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments.
3. Taxes. Client is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Client to Claritas Rx hereunder, other than any taxes imposed on Claritas Rx’s income. Without limiting the foregoing, in the event that Client is required to deduct or withhold any taxes from the amounts payable to Claritas Rx hereunder, Client will pay an additional amount, so that Claritas Rx receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
CONFIDENTIAL INFORMATION.
1. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Claritas Rx Platform and the Documentation will be deemed Confidential Information of Claritas Rx. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
2. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Claritas Rx may use and modify Confidential Information of Client in deidentified form for purposes of developing and deriving Benchmark Data and Usage Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
3. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
4. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
CLIENT MATERIALS AND DATA.
1. Ownership of Client Materials. Claritas Rx acknowledges that, as between Client and Claritas Rx and except as set forth in Section 5(b), Client owns and retains all right, title and interest in and to all Client Materials and Output.
2. License Grant. Client hereby grants Claritas Rx a non-exclusive, worldwide, royalty-free right and license to use, reproduce, display, perform, modify the Client Materials and Output, during the Term, (i) for the purpose of hosting, operating, and providing the Claritas Rx Platform; and (ii) in deidentified form, to improve the Claritas Rx Platform and Claritas Rx’s other related products, services and technologies, including without limitation for artificial intelligence and machine learning purposes (e.g., training computational algorithms and machine learning models).
3. Representations and Warranties of Client Materials. Client represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Client Materials (including any personal data or protected health information provided by or on behalf of Client or otherwise collected pursuant to Client’s privacy policy) and Output as contemplated by this Agreement and (ii) Claritas Rx’s use of the Client Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Client and any third party.
REPRESENTATIONS AND WARRANTIES.
1. Mutual. Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
INDEMNIFICATION.
1. Claritas Rx Platform Indemnification. Subject to Section 7(b), Claritas Rx will defend Client against any claim, suit or proceeding brought by a third party (“Claims”) (i) alleging that Client’s Use of the Claritas Rx Platform infringes or misappropriates such third party’s Intellectual Property Rights, or (ii) resulting from a Security Incident due to the acts or omissions of Claritas Rx, and in each case will indemnify and hold harmless Client against any damages and costs awarded against Client or agreed in settlement by Claritas Rx (including reasonable attorneys’ fees) resulting from such Claim.
2. Exclusions. Claritas Rx’s obligations under Sections 7(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Client’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Client Materials; (iii) Client’s failure to use any enhancements, modifications, or updates to the Claritas Rx Platform that have been provided by Claritas Rx; (iv) modifications to the Claritas Rx Platform by anyone other than Claritas Rx; (v) combinations of the Claritas Rx Platform with software, data or materials not provided by Claritas Rx; or (vi) Client’s continued Use of a prior version of the Claritas Rx Platform that has been superseded by a non-infringing version subsequently released by Claritas Rx.
3. IP Remedies. If Claritas Rx reasonably believes the Claritas Rx Platform (or any component thereof) could infringe any third party’s Intellectual Property Rights, Claritas Rx may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Claritas Rx Platform, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Client to continue Use. If Claritas Rx determines that neither alternative is commercially practicable, either Party may terminate this Agreement by providing written notice to the other Party. In the event of any such termination, Claritas Rx will refund to Client a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 7 will constitute Client’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Claritas Rx Platform.
4. Client Indemnification. Subject to Section 7(e), Client will defend Claritas Rx against Claims arising from (i) any Client Materials, including, without limitation, (A) any Claim that the Client Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Client Materials violates any applicable law, rule or regulation; and (ii) Client’s breach of its representations and warranties in Sections 2(e), 5(c), or 6, and in each case, will indemnify and hold harmless Claritas Rx against any damages and costs awarded against Claritas Rx or agreed in settlement by Client (including reasonable attorneys’ fees) resulting from such Claim.
5. Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
DISCLAIMER.
1. General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE CLARITAS RX PLATFORM AND OTHER CLARITAS RX IP ARE PROVIDED ON AN “AS IS” BASIS, AND CLARITAS RX MAKES NO WARRANTIES OR REPRESENTATIONS TO CLIENT, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE CLARITAS RX IP, THE CLARITAS RX PLATFORM, OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLARITAS RX HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, CLARITAS RX HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE CLARITAS RX PLATFORM WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
2. AI/ML Disclaimer. DUE TO THE NATURE OF MACHINE LEARNING AND ARTIFICIAL INTELLIGENCE, ANY OUTPUT MAY NOT BE UNIQUE AND THE CLARITAS RX PLATFORM MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR CLIENT OR A THIRD PARTY. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE CLARITAS RX PLATFORM MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE. THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE CLIENT MATERIALS INPUTTED INTO THE CLARITAS RX PLATFORM AND CLIENT’S COMPLIANCE WITH THIS AGREEMENT, AND NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, CLARITAS RX WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR OR IN CONNECTION WITH ANY CLIENT MATERIALS OR OUTPUT, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM CLIENT MATERIALS, OUTPUT, OR THEIR USE. CLIENT SHALL EVALUATE THE CONTENT, NATURE, TONE AND ACCURACY OF ANY OUTPUT AS APPROPRIATE FOR THE APPLICABLE USE CASE, INCLUDING BY USING HUMAN REVIEW OF THE OUTPUT.
3. Medical Disclaimer. CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT THE CLIENT AND ITS USERS ARE RESPONSIBLE FOR USING PROFESSIONAL JUDGMENT TO EVALUATE AND CONFIRM THE INFORMATION OBTAINED OR STORED ON THE CLARITAS RX PLATFORM, INCLUDING ANY OUTPUT. NEITHER THE CLARITAS RX PLATFORM NOR CLARITAS RX PROVIDE MEDICAL ADVICE OR MAKE ANY DIAGNOSTIC, TREATMENT, OR OTHER CLINICAL DECISIONS OR JUDGMENTS.
LIMITATIONS OF LIABILITY.
1. Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CLIENT’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE CLARITAS RX IP OR THE PROVISION OF THE CLARITAS RX PLATFORM, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
2. Total Liability. IN NO EVENT WILL CLARITAS RX’S TOTAL CUMULATIVE LIABILITY TO CLIENT OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE CLARITAS RX IP, OR THE PROVISION OF THE CLARITAS RX PLATFORM EXCEED THE FEES ACTUALLY PAID BY CLIENT TO CLARITAS RX IN THE THIRTY-SIX (36) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM (“GENERAL CAP”), REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT CLARITAS RX WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
3. Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 9 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN CLARITAS RX AND CLIENT, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
TERM AND TERMINATION.
1. Term. The initial term of this Agreement begins on the Effective Date and continues for the later of (i) three (3) years, or (ii) for so long as there is an applicable Order Form in effect (the “Term”). Thereafter, unless otherwise mutually agreed upon in an Order Form, this Agreement will expire unless the Parties mutually agree in writing to renew this Agreement for additional periods.
2. Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
3. Survival. The following Sections will survive termination or expiration of this Agreement for any reason: Sections 2(f), 2(g), 3, 4, 7, 8, 9, 10(c), 10(d), and 11.
4. Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate; (ii) Client will immediately owe all unpaid Fees for the remainder of the Term, provided that, notwithstanding the foregoing, if this Agreement is terminated due to Claritas Rx’s material breach, then Client will owe only the Fees which accrued through the date of termination; (iii) Client will return or destroy, at Claritas Rx’s sole option, all Claritas Rx Confidential Information in its possession or control, including permanent removal of such Claritas Rx Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Client’s possession or under Client’s control, and at Claritas Rx’s request, certify in writing to Claritas Rx that the Claritas Rx Confidential Information has been destroyed or, in the case of electronic communications, deleted; and (iv) within a reasonable time after expiration/termination, Claritas Rx will (subject to its surviving rights elsewhere in this Agreement) destroy all Client Materials within its possession or control, except for Client Materials which Claritas Rx is required to retain pursuant to applicable law or otherwise in connection with its backup or archival policies or procedures (which will be destroyed in accordance with Claritas Rx’s such policies); provided that the confidentiality obligations in Section 4 will continue to apply to the extent Claritas Rx retains such Client Materials.
GENERAL.
1. Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
2. Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth in the Order Form (or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 11(b)). Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.
3. Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
4. Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
5. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New Castle County, Delaware and the Parties irrevocably consent to the personal jurisdiction and venue therein.
6. Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, acquisition, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
7. Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Client, Section 2(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
8. Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
9. Export Regulation. Client will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Claritas Rx Platform or software, or any Client Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
10. U.S. Government End Users. The Claritas Rx Platform, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.
11. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
12. No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.
13. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.