These Terms may apply to you individually, the business or other legal entity user you represent, or both. If you are using the Services on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to enter into the Agreement on behalf of such entity. By accessing, registering for, or using the Services, you: (1) acknowledge that you have read and understood the Agreement; (2) agree to be bound by them in their entirety, and (3) are entering into a legally binding agreement with us. As used in the Agreement and unless separately identified as applicable to either an individual or entity,
BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY ACCESSING AND USING THE SERVICE, EXECUTING A SERVICE ORDER, OR RECEIVING OR PAYING FOR SERVICES, YOU AGREE TO THESE TERMS. YOUR RECEIPT OF OUR SERVICES REQUIRES YOUR ACCEPTANCE OF THESE TERMS AS THEY MAY BE AMENDED FROM TIME TO TIME, INCLUDING THE POLICIES INCORPORATED BY REFERENCE HEREIN, WHICH INCLUDES OUR PRIVACY POLICY.
1. Definitions
1.1 “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
1.2 “Agreement” means these Terms and any Service Orders you enter into with us.
1.3 “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with the Agreement that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
1.4 “Deliverables” means the deliverables and other work products, in any form or medium, uniquely developed by us for you and specifically identified as Deliverables in the applicable Services Order. Deliverables do not include any Pre-existing IP.
1.5 “Pre-existing IP” means any proprietary methodologies, tools, software, documentation, know-how, trade secrets, inventions, or works of authorship conceived or developed independently by us.
1.6 “Services” means the professional services identified in the Service Order.
1.7 “Service Order” means an ordering document entered into between you and us specifying the services to be provided thereunder, including any addenda and supplements thereto. Online registration or the sign-up page may also constitute a Service Order if it references these terms.
1.8 “We” or “us” or “our” means the Digital Pharmacist, Inc., d/b/a Shout Marketing, a Delaware corporation with office located at 4315 Guadalupe Street, Suite #200, Austin, TX 78751.
1.9 “You” or “your” or “Company” means the customer named on the Service Order, the person indicating acceptance of this Agreement, or if the person indicating acceptance of this Agreement is acting on behalf of a company or other legal entity, such company or legal entity.
2. Services
We will perform the Services in accordance with the requirements and deadlines in the applicable Service Order. Any changes to this Agreement or Service Order will require a written amendment signed by the parties, provided that neither you nor we shall unreasonably refuse any changes requested by the other party. All Deliverables will be delivered electronically to you. Title and risk of loss to tangible Deliverables will pass to you upon delivery at your destination.
3. Customer Obligations
3.1. General Obligations. You shall: (a) have the overall direction and responsibility for all Services to be performed hereunder; (b) provide us, in a timely fashion, with all information and data reasonably required for the performance of the Services by us hereunder, and ensure that it is complete and accurate in all material respects; (c) timely participate in meetings and make its personnel readily available for such meetings; and (d) assign personnel with relevant training and experience to work as part of a project team with us or in consultation with our personnel.
3.2. Customer Contract Manager. You shall cooperate with us in all matters relating to the Services and appoint an employee to serve as the primary contact with respect to this Agreement (the “Customer Contract Manager”).
3.3. Access and Assistance. You shall provide such access to your premises, facilities, and computer systems and networks as may reasonably be requested by us for the purposes of performing the Services. You shall respond promptly to any request we make to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for us to perform the Services.
3.4. Delay in Performance. If our performance of our obligations under this Agreement is prevented or delayed by any act or omission of you or your agents, subcontractors, consultants, or employees, we shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by you, in each case, to the extent arising directly or indirectly from such prevention or delay, and our obligation to perform will be extended by the same number of days as your contingent action is delayed.
4. Term; Termination
4.1 Term. This Agreement commences on the effective date specified in the Service Order and continues for the initial subscription term specified in the Service Order unless this Agreement is terminated earlier in accordance with the terms of this Agreement. Unless otherwise expressly stated in the Service Order, this Agreement automatically renews for additional successive one-year terms unless at least 30 days before the end of the then-current term either party provides written notice to the other party that it does not intend to renew.
4.2 Termination. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this subsection will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If you fail to timely pay any fees, we may, without limitation to any of our other rights or remedies, suspend performance of the Services until we receive all amounts due, or may terminate this Agreement pursuant to this Subsection.
4.3 Post-Termination Obligations. Following termination, y any license granted to you under any agreement related to your use of the Services shall immediately terminate. Upon termination, we may delete all of your data, and other information stored on our servers. Sections 4.3, 5, 7, 8, 9, 10, 11, 12, and 14 will survive termination.
5. Fees
5.1 General. You shall pay us the fees specified in the applicable Service Order. Fees and expenses due from you under this Agreement may not be withheld or offset by you against other amounts for any reason. If any invoiced amount is not received by us by the due date, then, without limiting our rights or remedies, those amounts will accrue interest at a rate of 1.5% per month or the maximum allowed under state law (whichever is lower). We may, at our option, may suspend the Services, in whole or in part, if we do not receive all amounts due and owing in accordance with this Agreement. We shall be entitled to an award of its reasonable attorney’s fees and collection costs in connection with your breach of its payment obligations. Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with its purchases hereunder.
5.2 Expenses. You will reimburse us, at cost, for reasonable expenses incurred by us in performing the Services, subject to your pre-approval.
5.3 Invoices. We shall (a) invoice you monthly for time and material Service Orders, and (b) for fixed-price Service Orders, shall invoice you in accordance with the schedule set forth in the applicable Service Order, or if no schedule is set forth, upon execution of the Service Order. You shall pay all invoices in U.S. Dollars within thirty (30) days of the date of the invoice.
5.4 Early Termination Fees. In the event you cancel or terminate any Service Order prior to its natural expiration, you agree to pay an early termination fee equal to the amount of the remaining fees set forth in such Service Order (pro-rated for any partial months) as if no such early cancellation or termination had occurred (the “Early Termination Fee”). The Early Termination Fee will become immediately due and payable upon an early cancellation or termination and represents our fees for permitting an early termination and not a penalty.
6. Data
Your Data is your property. We use data in accordance with our privacy policies found at https://shoutmarketing.com/privacy-policy/, which is hereby incorporated. You grant us a non-exclusive, worldwide, perpetual, royalty-free license to use, copy, transmit, sub-license, index, store, aggregate, and display Your Data as required to provide or perform under the Agreement, account management and support services, and technical services, and to publish, display, and distribute de-identified information derived from Your Data and from your use of the Service for any lawful purposes, including, without limitation, improving our products and services, developing new products and services, and developing, displaying, and distributing benchmarks, analysis, and similar reports.
7. Confidentiality
The Receiving Party will (i) not disclose or use any Confidential Information for any purpose outside the scope of the Agreement, and (ii) limit access to Confidential Information to those of its Affiliates and its and their employees, contractors, and agents who need such access for purposes consistent with the Agreement and who are bound by confidentiality restrictions no less stringent than those herein. Notwithstanding the foregoing, we may disclose your Confidential Information to the extent we believe it is reasonably necessary to comply with any court order or the law. Within thirty (30) days following the expiration or earlier termination of the Agreement, to the extent Receiving Party possesses or controls any Disclosing Party’s Confidential Information, Receiving Party shall destroy or otherwise purge from Receiving Party’s systems such Confidential Information, provided that we may maintain one (1) copy of any such Confidential Information if we determine, in our sole discretion, that the maintenance of such Confidential Information is necessary to comply with applicable laws or regulations. We may freely use any feedback or suggestions that are provided regarding the Services.
8. Intellectual Property Rights
8.1 Reservation of Rights. To the fullest extent permitted by law and save in respect of Pre-existing IP licensed to you pursuant to Section 8.4, you shall retain sole and exclusive ownership of all rights, title, and interest to all Deliverables. Each party retains sole and exclusive ownership of its Confidential Information. We shall retain sole and exclusive ownership of all rights, title, and interest to all Pre-existing IPs.
8.2 Trademark License. You hereby grant us a limited, non-exclusive, sub-licensable, irrevocable (during the term of the Agreement), royalty-free license to use, copy, modify, display, and distribute your trademarks, service marks, trade names, logos, company names, or other similar designations (the “Company Marks”) that it provides to us or our Affiliates (i) in connection with providing Services hereunder, and (ii) in our promotional materials during the term of the Agreement; provided, in each case, we and our Affiliates shall comply with any usage guidelines and quality control standards you’re your provide with respect to the use of the Company Marks.
8.3 Reservation of Rights. Subject to Section 8.4 and our receipt of full payment for the applicable Deliverable, all Deliverables, and all intellectual property rights in the Deliverables will be the sole and exclusive property of you and will be deemed to be a “work made for hire” (as defined in Section 101 of Title 17 of the United States Code). If any Deliverables are determined not to be “work made for hire,” we assign to you all rights, title, and interest in and to the Deliverables, including all intellectual property rights subsisting therein. We will cooperate with you to any commercially reasonable extent to effectuate our assignment of intellectual property rights in and to the Deliverables.
8.4 License. If we incorporate into or provides in conjunction with any Deliverables any Pre-existing IP, then subject to our receipt of full payment for the Deliverables, we hereby grant you (including your contractors, Affiliates, and agents) a non-exclusive, royalty-free, fully paid up, irrevocable, worldwide, perpetual license (with the right to sublicense) to make, have made, sell, offer for sale, use, execute, reproduce, modify, adapt, display, perform, distribute, make derivative works of, import, export, and disclose the Pre-existing IP in connection with the Deliverables.
9. Disclaimer
9.1 Warranties. We warrant that (a) we will perform the Services in a professional and workmanlike manner, and (b) the Deliverables will substantially conform to the requirements of the applicable Service Order upon their delivery.
9.2 Correction of Deliverables. We will, without charge, correct any non-conformity, defect, or malfunction in any Deliverables within thirty (30) days of written notice from you after their delivery provided such written notice especially identifies each deficiency to be corrected. If we determine that we are unable to correct the Deliverables, our sole obligation, and Customer’s exclusive remedy, at our sole cost and expense, is to do one of the following: (a) replace the affected Deliverables; (b) modify the affected Deliverables so that they are conforming to the warranty in Section 9.1; or (c) refund you all fees paid for the non-conforming Deliverables. THIS SECTION SETS FORTH YOUR SOLE REMEDY FOR ANY BREACH OF SECTION 9.1.
9.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, WE DISCLAIM ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO YOU REGARDING THIS AGREEMENT AND THE SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OF TITLE, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY US. NO WARRANTY IS MADE THAT THE DELIVERABLES WILL BE ERROR-FREE, THAT ALL ERRORS OR DEFECTS IN THE DELIVERABLES WILL BE CORRECTED, OR THAT THE DELIVERABLES WILL MEET YOUR REQUIREMENTS.
10. Indemnification
10.1 Our Indemnification. We shall (i) defend and hold you harmless against any claim, suit, demand, or action made or brought against you alleging that Company’s use of the Services in compliance with the Agreement infringes or misappropriates any individual’s or entity’s intellectual property rights (“Intellectual Property Claims”) and (ii) indemnify you against any settlements with such third party agreed to by us or any awards by a court of competent jurisdiction in favor of such third party bringing the Intellectual Property Claim(s). Our obligations in this section are contingent on being provided prompt written notice of the Intellectual Property Claim, our sole control of the defense, and settlement of all Intellectual property Claims (provided we will not settle any such claims without your consent, which you may not unreasonably withhold), and your reasonable cooperation in defending and settling Intellectual Property Claims. For the avoidance of doubt, indemnification under this Section may not be invoked or relied upon for any Intellectual Property Claims that arise from (a) misuse or alteration of the Services if no infringement would have occurred absent such misuse or alteration, (b) use of the Services in combination with any apparatus, hardware, or services not provided or furnished by us or our Affiliates, or (c) use of the Services in a manner for which they were neither designed nor contemplated, in each case, if no infringement would have occurred absent such event.
10.2 Your Indemnification. You agree to defend, indemnify and hold us, our affiliate companies, and each of our respective directors, officers, employees, contractors, agents, successors and assigns harmless from any claim or demand, including reasonable attorneys’ fees, arising out of or relating to (i) any violation of the Agreement by you; (ii) Your Data or any other content or material you submit or otherwise transmit through our Services; (iii) your violation of any applicable laws or rights of another; (iv) your negligent or more culpable conduct; or (v) your use of the Services other than in accordance with the Agreement. We may, at our own expense, elect to assume the exclusive defense and control of any third party claim otherwise subject to defense by you. You may not settle or compromise any claim subject to this section without our prior written consent at our sole discretion.
11. Limitations of Liability
11.1 Disclaimer of Indirect Damages. UNDER NO CIRCUMSTANCES WILL WE, OUR AFFILIATES, EMPLOYEES, OFFICERS, AGENTS, REPRESENTATIVES (“SHOUT PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM PERSONAL INJURY, DEATH, LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES.
11.2 Cap on Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL ANY SHOUT PARTIES’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (A) TOTAL AMOUNTS PAID BY YOU UNDER THESE TERMS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM OR (B) FIVE HUNDRED DOLLARS ($500).
11.3 Claims Period Limitation. You agree any cause of action arising out of or related to the use of our Services must be commenced within two (2) years after the cause of action accrues, or such action will be permanently barred.
11.4 Exception. Some states or jurisdictions may not allow the exclusion or the limitation of liability. In such states or jurisdictions, the Provider Parties’ liability to you shall be limited to the full extent permitted by law.
11.5 Independent Allocations of Risk. Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of these terms between the parties. This allocation is reflected in the pricing offered by us to you and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these terms. The limitations in this section will apply notwithstanding the failure of the essential purpose of any limited remedy in these terms.
12. Arbitration Agreement
Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in Austin, Texas by a single arbitrator knowledgeable in government contracting matters and the commercial aspects of “software as a service” or “platform as a service” arrangements and intellectual property. The arbitrator will provide detailed written explanations to the parties to support his/her award and regardless of the outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.
13. Consent to Electronic Communications
13.1 Consent. You agree that we may send the following to you by email or by posting them on our website and/or mobile application: legal disclosures; these Terms; our privacy policy; future changes to any of the foregoing; and other notices, policies, communications or disclosures and information related to the Services. You agree that we may contact you via email, phone, text, or mail regarding your membership or the Services. You consent to receive such communications electronically. You agree to update your contact information to ensure accuracy. Your consent to conduct actions electronically covers all interactions between you and us.
13.2 Updating your Consent. If you later decide that you do not want to receive certain future communications electronically, please send an email to privacy@digitalpharmacist.com or a letter to the applicable notice address set forth in Section 1.8. You may also opt-out of certain electronic communications through your account or by following the unsubscribe instructions in any communication you receive from us. Your withdrawal of consent will be effective within a reasonable time after we receive your withdrawal notice described above. We will need to send you certain communications electronically regarding the Services. You will not be able to opt-out of those communications – e.g., communications regarding updates to the Terms or information about billing. Your withdrawal of consent will not affect the legal validity or enforceability of the Terms provided to and accepted by, you. If you withdraw your consent to receive communications electronically, certain Services may become unavailable to you.
14. General Provisions
14.1 Relationship. We will be and act as an independent contractor (and not as the agent or representative of you) in the performance of these Terms.
14.2 Assignment and Delegation. You may not assign any of your rights or delegate any of your obligations under these Terms (in whole or in part) without our prior written consent, except in connection with a change of control, merger, or by operation of law. Your assignment or delegation will not relieve you of your obligations under these Terms nor release you of your liability under these Terms. We may voluntarily, involuntarily, or by operation of law assign any of our rights or delegate any of our obligations under these Terms without your consent, including but not limited to delegating the responsibility of providing some or all of the Services to one or more subcontractors or our Affiliates. Any purported assignment or delegation in violation of this Subsection will be null and void. Subject to this Subsection, these Terms will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns.
14.3 Notices. Any notice required or permitted to be given in accordance with these Terms will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate party at the address provided by the other party and with the appropriate postage affixed. Our current notice address is set forth in Section 1.8. Either party may change its address for receipt of notice by notice to the other party in accordance with this Subsection. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
14.4 Force Majeure. We will not be liable for or be considered to be in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of any cause or condition beyond our reasonable control, including but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, viruses, malware or ransomware, or acts of hackers, internet service providers or any other third party, or your or your Affiliates’ acts or omissions.
14.5 Governing Law. This Agreement will be governed and construed under the laws of the State of Texas without regard to conflicts of law provisions. Any suit or proceeding arising out of or relating to this Agreement will be brought in the federal or state courts, as applicable, in Texas, and each party irrevocably submits to the jurisdiction and venue of such courts.
14.6 Third-Party Beneficiaries. Each of our Affiliates is a third party beneficiary of these Terms to which we reserve the right to extend the benefits, obligations, and privileges without specifically naming such Affiliate as a party. Without limiting the foregoing, liability to you in connection with the Agreement shall reside solely with us and not with our Affiliates. Any Affiliate may execute a separate Service Order for Services subject to the same terms and conditions of these Terms. Notwithstanding anything to the contrary in these Terms, neither we nor any of our Affiliates have any joint and severable liability with one another to you. Your rights and obligations under these terms are with respect to us and you agree to seek the recovery of any damages solely against us, and not with any of our Affiliates.
14.7 Waiver and Modifications. Failure, neglect, or delay by a party to enforce the provisions of the Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under the Agreement and will not in any way affect the validity of the whole or any part of the Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under the Agreement will not preclude the enforcement by the party of any other right or remedy under the Agreement or that the party is entitled by law to enforce. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. If a change materially modifies your rights or obligations, you will be required to accept the modified Agreement in order to continue to use the Services. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
14.8 Severability. If any part of the Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under the Agreement is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate.
14.9 Headings. Headings are used in the Agreement for reference only and will not be considered when interpreting the Agreement. The singular of any term, including any defined term, shall include the plural and the plural of any term shall include the singular.
14.10 Entire Agreement. These Terms contain the entire agreement of the parties with respect to the subject matter of the Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the said subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of the Agreement.