PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. THERE IS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO THE SALE OF SERVICES PROVIDED BY RX SAVINGS, LLC, A KANSAS LIMITED LIABILITY COMPANY (“SERVICE PROVIDER”).
1. ACCEPTANCE: BY ORDERING THE PHARMACY COST SAVINGS SERVICES PROVIDED BY THE SERVICE PROVIDER (THE “SERVICES”) ON THE SERVICE PROVIDER’S WEBPAGE BY SUBMITTING THE ON-LINE PURCHASE ORDER (THE “PURCHASE ORDER”) AND ACCEPTING THESE TERMS AND CONDITIONS (THE “TERMS”), BOTH THE INDIVIDUAL WHOSE MEDICAL INFORMATION IS PROVIDED TO SERVICE PROVIDER (THE “PATIENT”) AND THE INDIVIDUAL PURCHASING THE SERVICES (THE “PURCHASER”) (THE PATIENT AND PURCHASER MAY BE THE SAME OR DIFFERENT INDIVIDUALS) EXPRESSLY AGREE TO ALL THE TERMS CONTAINED HEREIN.
2. AGREEMENT: The Terms set forth herein are the complete and exclusive statement of the parties’ agreement and supersede any prior or contemporaneous proposal, representation, negotiation or other communication. No modification or waiver of any of these Terms herein shall be of any force or effect unless made in writing and signed by the party claimed to be bound thereby.
3. PURCHASE ORDER. The Purchase Order, and its terms and conditions, are hereby incorporated herein by reference to the Terms.
4.PRICE – PAYMENT:
(a) Purchaser shall be billed every month, for a minimum of twelve (12) months, for the Services. The Purchaser’s first payment is immediately due and payable upon the completion of the Purchase Order. On the monthly anniversary of the date the Purchase Order was completed, Purchaser shall pay for the level of Services that Purchaser subscribed to in the Purchase Order. Purchaser’s credit card or bank card information provided in the Purchase Order will be used to make the monthly payment unless otherwise indicated by Purchaser to Service Provider. Expect as otherwise provided in these Terms and Conditions, Purchaser is and shall be liable to Service Provider for an amount equal to twelve (12) payments for the Services purchased by Purchaser.
(b) After a minimum of twelve (12) months, Purchaser may terminate the Services and stop payment of the services upon thirty (30) days notice to Service Provider. Notice may be provided to Service Provider via electronic transmission, regular mail or by telephone by using the contact information for Service Provider on Service Provider’s website. If Purchaser provides notice before a monthly payment is due, but not within the thirty (30) day requisite time period, then Purchaser is still liable for the next monthly payment.
(c) Any payments that are more than fifteen (15) past due for any reason, including but not limited to insufficient funds in a bank account or a cancelled credit card, shall accrue interest at one and one-half percent (1.5%) per month until paid. The Purchaser agrees to pay all of Service Provider’s costs of collection of any overdue payment under these Terms and Conditions, including reasonable attorney’s fees. Purchaser must immediately notify Service Provider of any cancellation of its credit or bank card or account that is on file with Service Provider.
(d) Purchaser acknowledges and agrees that there are three levels of Services. Purchaser may upgrade its level of Services to a more expensive level of Services at any time by providing notice to Service Provider. Purchaser may not downgrade (even after Purchaser has upgraded to a more expensive level of Services) its Services to a less expensive level of Services during the first twelve (12) months that Purchaser engages the Services at any time for any reason. If Purchaser upgrades its Services to a more expensive level of the Services, then it Purchaser agrees to continue the Services, and to pay for the Services, for a minimum of three (3) months after such upgrade.
(e) Service Provider reserves the right to reasonably change the prices for any of the levels of Services at any time for any reason. Any change to the price of any of the Services will only be done upon sixty (60) days notice to Purchaser.
(f) Service Provider agrees to provide a money-back guaranty for the Services as provided in this paragraph. If Service Provider does not provide Purchaser or Patient with cost savings information to potentially save the Purchaser or Patient more than the total sum of money that the Purchaser has paid to Service Provider during the first twelve (12) months of Services, then Service Provider will, within thirty (30) days of the end of the twelve (12) month term, refund all of Purchaser’s money that it has paid to Service Provider during the first twelve (12) months. However, if Purchaser does not cancel the Services after this first twelve (12) months and continues to receive the Services from Service Provider, then Purchaser shall be liable for payment of all Services after the first twelve (12) month period.
5. DELIVERY: Although Service Provider will use its reasonable best efforts to timely deliver the Services, delivery dates are approximate. Service Provider will not be liable to either the Patient or the Purchaser for delays in delivery of the Services and any damages, expenses or costs that may result from any delay in the Services.
6. PHYSICIAN APPROVAL. Neither the Patient nor the Purchaser shall make any changes in any prescriptions, medications, over the counter medications, or make any changes relating to the Patient’s medical health pursuant to the Services without first receiving the Patient’s primary physician’s approval.
7. INFORMATION ONLY. The Patient and the Purchaser hereby acknowledge and agree that the Services provided are cost savings information only and should only be carried out with the approval of a board certified physician. The Services do not constitute medical advice, pharmacy advice, nor do the Service constitute medical or pharmacy services, in any form for any reason. The Patient and the Purchaser acknowledge and agree that the cost savings information provided pursuant to the Services are for cost savings purposes only, and the medications or prescriptions that may be recommended are not recommendations for the most effective prescription for a certain illness, ailment or medical condition and may not be the most effective medication or prescription for the Patient’s health condition or care.
8. LICENSE. The Patient and Purchaser acknowledge that the primary pharmacist(s) engaged by the Service Provider as a part of the Services is licensed by the National Board of Pharmacy and provides services in the State of Kansas and is licensed in such State.
9. NO WARRANTY: SERVICE PROVIDER DOES NOT PROVIDE ANY TYPE OF WARRANTY ON ITS SERVICES FOR COST SAVINGS, IMPROVEMENT OF HEALTH OR QUALITY OF LIFE OR FOR ANY OTHER PURPOSES, WHETHER WRITTEN OR ORAL, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE CONCERNING THE SERVICES, AND ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR INTENDED PURPOSE, ARE HEREBY DISCLAIMED AND EXPRESSLY EXCLUDED.
10. LIMITATION OF LIABILITY. SERVICE PROVIDER IS NOT LIABLE TO THE PURCHASER OR THE PATIENT FOR ANY CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES, OR ANY PUNITIVE DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A SERVICE PROVIDER REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS, NOR IS SERVICE PROVIDER LIABLE FOR ANY CLAIM BY ANY THIRD PARTY. IF, NOT WITHSTANDING THE FOREGOING, SERVICE PROVIDER IS FOUND TO BE LIABLE TO THE PURCHASER OR THE PATIENT FOR ANY ACT OR OMISSION, SERVICE PROVIDER’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THE SERVICES, THIS PURCHASE ORDER AND THE TERMS IS LIMITED TO THE AMOUNT PAID FOR THE SERVICES BY THE PURCHASER FOR THE SERVICES.
11. PATIENT’S SOLE USE. The Services provided by Service Provider under the Terms and the Purchase Order are for the sole use of the Patient. The Services are individualized and are not for use by any third party. Neither the Patient nor the Purchaser shall provide any third party, for any reason, the information transmitted from Service Provider to the Patient or Purchaser pursuant to the Services, in whatever form including oral, written or electronic (the “Service Information”), except to any board certified physician for the approval of any switch in medication or prescription or to a caregiver designated by Purchaser and/or Patient to Service Provider as an authorized recipient of the Service Information. Neither the Patient nor the Purchaser shall divulge any Service Information in breach of the Terms. Neither the Patient nor the Purchaser shall use for their own benefit (excluding for the purpose of the Services to provide a prescription cost savings benefit for the Patient) publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of Service Provider, any Service Information. Upon breach of this Section 11 by Purchaser, Service Provider may immediately discontinue the Services upon notice to Purchaser; provided, however, Purchaser shall immediately be liable for the total sum of Services due during the first twelve (12) months of the Services plus a termination fee equal to One Hundred Dollars ($100). The fees due from Purchaser under this paragraph are due within ten (10) days of the termination of the Services by Service Provider.
12. PRIVACY. The Service Provider acknowledges and agrees to use its reasonable best efforts to encrypt and keep secure the website and all of the website’s information pertaining to any medical information of the Patient, to keep the Patient’s medical information and all Service Information relating to the medical condition of Patient confidential, and to otherwise comply with all state and federal privacy rules and regulations. The Service Provider shall not disclose any of the Patient’s medical information or the Service Information relating to the Patient’s medical condition to any third party and will hold such information in the strictest confidence. The Service Information, the Services provided to the Patient by Service Provider, and all other information pertaining to the medical information of Patient are to be viewed by the Patient only and are, as discussed in Section 11 above, for the Patient’s sole use and benefit. The Patient hereby expressly waives any and all claims against Service Provider for violation of any and all federal or state privacy statutes, rules and regulations, or any breach of confidentiality or of this Agreement, due to: (1) any negligence or willful act or omission of the Patient or Purchaser that results in the viewing of any of the Patient’s medical or health information by a third party, including but not limited to any act that results in the Patient or Purchaser giving any third party its log-in name and/or password, any act in which the Patient or Purchaser allows any third party (excluding a board certified physician for the purpose of switching the Patient’s medications or prescriptions pursuant to the Services or Service Information) to view the Service Information given to the Patient by Service Provider, any e-mail transmission by the Patient or Purchaser of the Patient’s medical information, or any viewing of any of the Patient’s information by a third party due to the fact the Patient engaged a third party to purchase the Services on behalf of the Patient; or (2) any circumstance beyond the Service Provider’s control, including but not limited to the unlawful hacking by a third party into the website.
13. INDEMNITY. The Patient shall indemnify and hold harmless Service Provider and its members, managers, agents, contractors, engaged pharmacists and employees against all claims, damages, losses and expenses, including reasonable attorney’s fees, in the event that Service Provider incurs any expenses as a result of or incident to the following: (i) any breach of any representation, warranty, covenant or agreement made by the Patient under Terms or the Purchase Order; (ii) any intentional or negligent actions or omissions of the Patient relating to the use of the Services under the Terms or the Purchase Order; and (iii) any disclosure of the Service Information to any third party except to a physician for the purpose of switching the Patient’s medications or prescriptions pursuant to the suggestions provided in the Services. The Purchaser shall indemnify and hold harmless Service Provider and its members, managers, agents, contractors, engaged pharmacists and employees against all claims, damages, losses and expenses, including reasonable attorney’s fees, in the event that Service Provider incurs any expenses as a result of or incident to the following: (i) any breach of any representation, warranty, covenant or agreement made by the Purchaser under Terms or the Purchase Order; (ii) any intentional or negligent actions or omissions of the Purchaser relating to the use of the Services under the Terms or the Purchase Order; and (iii) any disclosure of the Service Information to any third party except to a physician for the purpose.
14. FORCE MAJEURE: Service Provider shall not be liable for any damages resulting from any delay or failure of performance arising from any cause not reasonably within Service Provider’s control; accidents to, breakdowns or mechanical failure of machinery or equipment, however cause; strikes or other labor troubles; shortage of labor; transportation, raw materials, energy sources or failure of usual means of supply; fire; flood; war, declared or local governments or any of their subdivisions, bureaus or agencies. Service Provider may, at its option, cancel the Purchase Order, or delay performance hereunder for any period reasonably necessary due to any of the foregoing, during which time the Purchase Order and the Terms shall remain in full force and effect, shall have the further right to then allocate its available goods in such manner as Service Provider shall determine.
15. WAIVER, MISTAKE: The waiver by either party of any provision herein or any breach thereof shall not constitute a waiver of any subsequent breach thereof, nor of any other provision, or multiply the effectiveness of such provision.
16. ENFORCEMENT OF OBLIGATIONS. Each the Patient and the Purchaser agree to pay all Service Provider’s costs and expenses, including reasonable attorneys’ fees, expended or incurred (whether or not in connection with judicial proceedings) by Service Provider in enforcement of the Purchase Order or the Terms against such Patient and/or Purchaser that is in violation of the Purchase Order or the Terms.
17. CHOICE OF LAW: The parties agree that this contract shall be governed by the law of the State of Kansas without regard to conflicts of law principles. Any disputes under this Agreement may be brought in the state courts and the Federal courts located in Johnson County, Kansas, and the Patient and Purchaser hereby consent to the personal jurisdiction and venue of these courts. The Patient and the Purchaser agree that services of process may be made by mailing a copy of the summons and complaint to the Patient and/or the Purchaser at its address set forth in Service Provider’s records.
18. PREVAILING PARTY, PAYMENT OF ATTORNEYS’ FEES. If a party is successful in any suit or proceeding against the other party to enforce these terms or conditions because of any damages sustained by a party due to the other party’s violation of these Terms or the Purchase Order, the losing party will pay the prevailing party, in addition to other costs and damages, its reasonable attorneys’ fees.
19. MISCELLANEOUS:
(a) The Purchase Order and the Terms are solely for the benefit of the parties, and no provision of these Terms or the Purchase Order will be deemed to confer upon any other person any remedy, claim, liability, reimbursement, cause of action or other right.
(b) Neither the Purchaser nor the Patient may assign, transfer or convey any of its rights, duties, or liabilities provided for in the Purchase Order or Terms without the prior written approval of Service Provider, which approval shall not be unreasonably withheld.
(c) Notices must be given in writing by mail, facsimile or electronic transmission addressed to the parties at the addresses set forth on the face of the Purchase Order, on Service Provider’s website, through the contact tab on the Service Provider’s website, or as provided in Service Provider’s customer records (or such other address as the parties may specify in a written notice).
(d) The validity or unenforceability of any provision in the Terms or Purchase Order shall not affect the validity or unenforceability of the other provisions, and the Terms or Purchase Order shall be construed in all respects as if such invalid or unenforceable provision was omitted.