This Master Agreement (this “Agreement”) is effective as of the application date (the “Effective Date”) by and between Pharmacy indicated on application (“Pharmacy”), with a principal business address of Pharmacy as indicated on application.
WHEREAS, Pharmacy provides pharmaceuticals and related ancillary products and services to long-term care facilities, such as skilled nursing facilities, assisted living facilities, group homes, correctional facilities and others (the “Facilities”) and their residents;
WHEREAS, eMARneek has established an interface (the “Interface”) to connect the Pharmacy’s medication records (the “Records”) and systems with eMARneek’s electronic medication administration record software to facilitate the transfer of the Records to the applicable Facilities serviced by the Pharmacy that uses the software (the “eMARneek Software”);
WHEREAS, Pharmacy desires to use certain eMARneek configuration, monitoring and communication software (the “eMARneek Software”) that is necessary to configure the Interface in a manner which connects eMARneek’s systems and software with the Pharmacies’ systems and software and thereby permits eMARneek and the Pharmacies to access and transfer information, including the Records;
WHEREAS, in order for Pharmacy to use the eMARneek Software, Pharmacy must click to accept the terms of eMARneek’s standard click-wrap end user license agreement embedded in the eMARneek Software, an example of which is (the “EULA”);
WHEREAS, each Facility (an “Electing Facility”) that elects to use the software must click to accept the terms of eMARneek’s standard click-wrap end user license agreement embedded in the software, an example of which is shown at (the “EULA”); and
NOW THEREFORE, the parties hereto agree as follows:
- Services. Pharmacy will make the Records accessible to eMARneek through the Interface and eMARneek shall regularly, and as determined by the Pharmacy in its discretion, extract such Records from the Interface. eMARneek will then transfer the Records to the applicable Electing Facility for utilization by the Electing Facility with eMARneek Software and eMARneek may make certain information it receives from the Electing Facility available to Pharmacy through the Interface, as agreed to by the parties, including, but not limited to, notifications of new prescriptions, census information for the Facilities, and diagnosis information (the “Services”)
- Support.During the Term of this Agreement, eMARneek shall provide maintenance and support services to Pharmacy and the Facilities, per eMARneek standard Support policies & procedures (the “Support”) or the EULA.
- Fees; Payment Terms.
i. Installation and Training Charges. For each installation of the eMARneek Software at a Pharmacy location, the applicable Pharmacy shall pay a one-time installation charge of $2,000 for the initial setup of the eMARneek Software and the Interface and live online training of such Pharmacy’s employees (the “Initial Installation and Training”). Such Initial Installation and Training will include live online training for supervisors and administrators at an initial Electing Facility. Caregiver training is available at no charge on the eMARneek training site. This serves as knowledge transfer to Pharmacy, thus allowing Pharmacy to conduct Facility Training (as defined below), as needed in the future. Any additional online training requested by Pharmacy or a Pharmacy shall be provided by eMARneek at eMARneek’s standard published rates and is availability of resources, per eMARneek’s training calendar. Any onsite training requested by Pharmacy or a Pharmacy shall be provided by eMARneek on two consecutive days at the rate of $3,000 per location plus the cost of reasonable travel expenses actually incurred, plus $1,000 per day for any additional days of training at such location. All charges and costs pursuant to this Section 3.A.i. are referred to herein as the “Installation and Training Charges.”
ii. Transfer Fee. In the event that a Facility using eMARneek, interfaced with a third-party Pharmacy, subsequently becomes an Electing Facility to begin interfacing with a new Pharmacy, the new Pharmacy shall pay a one-time charge of $975, per facility, as a “Transfer Fee”, in order for eMARneek to accommodate and facilitate such a transfer.
iii. License and Services Fees. The monthly fee for the License granted by the EULA and the Services (the “Fees”) shall be calculated per resident living in an Electing Facility during such month for which eMARneek has been used in their care (each an “Active Resident”) as detailed in pricing table shown on Pharmacy Partner Application. “Active Resident” defined to mean, any individual listed in the eMARneek Software database for whom the eMARneek Software has been utilized for medication administration and/or management. If no medications are managed at the facility using eMARneek Software then a secondary definition of Active Resident will apply, based on which software modules are put into use. If modules other than the eMAR module are activated in the eMARneek Software then any resident that is designated Active, as defined in the software, on the last day of the billing period in the eMARneek Software will be considered an Active Resident.
iv. Support. eMARneek shall provide the Support as a service at no extra charge, provided that any on-site maintenance or support required or requested by a Pharmacy and approved in writing by Pharmacy shall be billed by eMARneek at eMARneek standard published rates, plus the actual travel and expenses.
v. Pharmacy Dispensing Software Conversion Fee. In the event that, after delivery of initial start-up services, Pharmacy changes to a different pharmacy dispensing software, eMARneek shall invoice Pharmacy $1,000 to compensate for activities related to the transition, similar to the original start-up fees.
vi. General. The Fees shall not include taxes or duties of any kind levied by federal, state, municipal or other governmental authority which either eMARneek or Pharmacy is required to pay with respect to the License and Support.
B. Payment Terms. eMARneek shall submit a detailed invoice to Pharmacy for all Fees, Installation and Training Charges and/or Transfer Charges within 10 days after the end of each month. Pharmacy shall remit payment by electronic funds transfer within 30 days of the invoice date. eMARneek shall apply payments from Pharmacy to the invoices specified by Pharmacy.
- Facility Training.If requested by Facility and agreed upon by the Pharmacy, Pharmacy may conduct initial training for use of eMARneek Software for the personnel at any Electing Facility for which a Pharmacy is using the License (the “Facility Training”). However, prior to Pharmacy providing Facility Training, Pharmacy must first complete the Initial Installation and Training, with the included Facility Training for the Pharmacy’s initial Electing Facility. Facilities may also purchase training directly from eMARneek.
- Representations and Warranties.
A. Corporate Authority; No Conflict. Each party warrants that it has full power and authority to enter into and perform this Agreement, and the person executing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.
B. Warranties Made by Pharmacy. Pharmacy will not make or publish any representations, warranties, or guarantees on behalf of eMARneek or its suppliers concerning the eMARneek Software that are inconsistent with the express warranties contained in the eMARneek EULA concerning the eMARneek Software.
A. Compliance with Laws and Regulations. Each of eMARneek and Pharmacy agrees that in the performance of this Agreement, it will comply with all applicable laws, statutes, rules, regulations or orders of the United States government or of any state or political subdivision thereof. In addition to the other representations, warranties and covenants given herein, eMARneek and Pharmacy hereby certify that they will not violate the Anti-Kickback Statute (42 U.S.C. §1320a-7b(b)) with respect to their performance under this Agreement.
B. HIPAA Compliance. Each of eMARneek and Pharmacy hereby covenants and agrees that in performing its obligations under this Agreement, it will comply in all material respects with the Health Insurance Portability and Accountability Act and its implementing regulations (including, without limitation, the privacy regulations adopted at 45 C.F.R. Parts 160 and 164 and the code set regulations adopted at 45 C.F.R. Parts 160 and 162), as they may be amended from time to time.
- Term; Termination.
A. Term. The term of this Agreement shall begin on the Effective Date and continue for one year and shall automatically renew thereafter for successive one-year periods (the “Term”) unless either party provides written notice to the other of its intent to terminate no later than ninety (90) days prior to the end of the then current period.
B. Individual License Termination. Pharmacy may, at any time and without cause, terminate its use of the License with respect to any Facility by giving not less than five (5) business days’ notice to eMARneek (an “Individual License Termination”). After an Individual License Termination, the License shall no longer entitle Pharmacy to use the eMARneek Software for the Facility identified in such notice, and such Facility’s Active Residents shall no longer be included in the calculation of the Fees. Notwithstanding the foregoing, Pharmacy may at any time elect to resume its use of the License with respect to any Facility by giving notice to eMARneek, and in such event the License shall once again entitle Pharmacy to use the eMARneek Software for such Facility and such Facility’s Active Residents will thereafter be included the calculation of the Fees.
A. Indemnification By eMARneek. eMARneek agrees to defend, indemnify and hold harmless Pharmacy and Facilities from and against any claims, suits, losses, damages, costs, and expenses (including reasonable attorneys’ fees) brought by third parties resulting from or relating to (a) any breach by eMARneek of its obligations, duties or responsibilities under this Agreement, (b) any representations, warranties, guarantees made by eMARneek relating to the eMARneek Software; (c) a claim that the eMARneek Software or any aspect thereof used hereunder infringes or violates any issued United States patents, issued prior to the effective date of the Agreement, registered United States copyrights that are registered prior to effective date of the Agreement, trade secrets, written licenses. In the event that the eMARneek Software or any portion thereof is held to constitute an infringement and its use is enjoined, eMARneek shall have the obligation, at its expense, to do one of the following at its own choosing: (i) modify the infringing eMARneek Software so that it is non-infringing, (ii) procure for Pharmacy and End Users the right to continue to use the infringing software, or (iii) replace said system with an equally suitable, non-infringing software.
B. Indemnification By Pharmacy. Pharmacy agrees to defend, indemnify and hold harmless eMARneek and its Affiliates from and against any claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties(including any Facility or End User ) resulting from or relating to: (a) any breach by Pharmacy of its obligations, duties, or responsibilities under this Agreement, or by any Facility of the terms of any agreement with such Facility relating to the eMARneek Software; (b) any actions or omissions on the part of Pharmacy in using or distributing the eMARneek Software or Documentation; (c) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Pharmacy relating to the eMARneek Software, other than as authorized by eMARneek in writing or made in the Documentation; (d) any claims against eMARneek made by End Users or Facilities who receive the eMARneek Software from Pharmacy except to the extent subject to a warranty permitted hereunder.
- Remedies. Except as provided elsewhere herein, the parties’ rights and remedies under this Agreement are cumulative. Pharmacy acknowledges that the eMARneek Software contains valuable trade secrets and proprietary information of eMARneek, that any actual or threatened breach of the provisions of this Agreement relating to the eMARneek Software or other eMARneek Intellectual Property Rights will constitute immediate, irreparable harm to eMARneek for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If Pharmacy continues to use or Provide the eMARneek Software after its right to do so has terminated or expired, eMARneek will be entitled to immediate injunctive relief without the requirement of posting bond, including an order directing that any copies of the eMARneek Software, or any portions thereof, that Pharmacy attempts to import into any country or territory be seized, impounded, and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
- Independent Contractors.The parties hereto are independent contractors with respect to each other, and nothing in this Agreement will be construed to place the parties in the relationship of partners, joint ventures, fiduciaries or agents. Neither party is granted any right or any authority to assume or to create an obligation or to bind the other party. eMARneek will perform under this Agreement with trained personnel and eMARneek acknowledges that Pharmacy have no labor relationship with, right, power, authority or duty to select, hire, manage, discharge, supervise or direct any of eMARneek’s employees, agents, subcontractors or their employees. eMARneek will indemnify and defend Pharmacy against any claims of eMARneek’s employees, agents, subcontractors or their employees alleging employment with Pharmacy and the Pharmacies.
- Notice. All notices delivered under this Agreement shall be in writing and deemed to have been properly given and received (a) if delivered by messenger, when delivered; (b) if mailed by delivery to the United States Postal Service, by certified or registered mail, postage prepaid, return receipt requested, on the fifth business day after mailing, or (c) if delivered by a reputable national overnight delivery services, the business day following delivery to such carrier, properly addressed to applicable party as indicated on signature page of this agreement.
- Governing Law. This Agreement will be governed by the laws of the State of Indiana as such laws apply to contracts between Indiana residents performed entirely within Indiana. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement will be brought exclusively in a federal or state court located in Indianapolis, Indiana and each party irrevocably submits to the jurisdiction of and venue within any such court in any such action or proceeding.
- Assignment. Neither party may assign this Agreement or any of its rights thereunder, or delegate any of its obligations thereunder, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Any attempted assignment or delegation without such consent shall be void and of no effect.
- Waiver. The failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants or conditions or the future exercise of such right, but the obligation of the other party with respect to such future performance shall continue in full force and effect.
- Severability. If any provision of this Agreement is found by a court to be illegal, invalid, or unenforceable, such provision shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties and the remaining provisions of this Agreement will remain in full force and effect.
- Entire Agreement. This Agreement, together with any exhibits attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede, as of the Effective Date, any and all prior or contemporaneous agreements, arrangements or understandings, oral or written, between the parties with respect thereto, including, without limitation, any user license imbedded in the eMARneek Software. In addition, Pharmacy shall not be deemed to be a party to any End-User License between any Electing Facility and eMARneek and the terms and conditions contained in such End-User Licenses shall not be binding upon Pharmacy.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original and all of which, when taken together, will be deemed to constitute one and the same agreement.