Terms of Service
Last Updated: June 30, 2025
Acceptance of the Terms
The following terms of service, (these “Terms”) are entered into by and between you and Photon Health, Inc. (“Photon,” “Company,” “we,” “us” or “our”). These Terms govern your access to and use of our website (our “Site”), use our application (“App”), use our application programming interfaces (“APIs”) or use any other products and services made available by us (collectively with the Site, the “Services”).
Please read these Terms carefully. By accessing, browsing or otherwise using the Services or by clicking to accept or agree to the Terms when this option is made available to you, you (1) acknowledge that you have read and understood these Terms, (2) represent and warrant that you meet all of our eligibility requirements for using the Services as described in these Terms, and (3) accept and agree to be bound by these Terms, including any other terms applicable to the Services that are incorporated herein by reference. If you are using the Services on behalf of an entity, you are agreeing to these Terms for that entity and are representing to us that you have the authority to bind that entity to these Terms (in which case “you” will refer to that entity). If you do not accept these Terms or do not satisfy the eligibility requirements set forth below, you may not access or use the Services.
Privacy Policy
Your use of, and participation in, the Services offered by the Company is subject to the terms set forth in our privacy policy located at photon.health/privacy (the “Privacy Policy”). Our Privacy Policy details how we collect and use your information.
Changes to the Terms of Service
We reserve the right to update and revise these Terms at any time. We’ll make sure to also change the “Last Updated” date at the top of this page so you can tell if these Terms have changed since your last visit. Any such changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. Please review these Terms regularly because once we post any changes, your continued use of the Services constitutes your acceptance of the revised Terms.
Access to Services; Account Registration
By accessing the Services, you warrant that:
You are legally capable of entering into binding contracts;
All registration information you submit is truthful and accurate;
You will maintain the accuracy of such information; and
Your use of the Services does not violate any applicable law or regulation.
To access our Services, you may be required to register with the Site and create a user account (“Account”). If you create an Account, you are solely responsible for any activity that occurs through your Account. In order for us to provide you the best possible service, you agree to provide us with complete, accurate, and updated information for your Account at all times. You agree that all information that you submit upon creation of your Account is accurate and truthful and you have the right to post the content on the Service and grant a license to Photon. If any information is incorrect or outdated, it can lead to errors or delays, for which we will not be responsible.
You should not share your Account information. You should not use another person’s Account or registration information for the Services without permission. Similarly, no one else should be able to use your Account without permission. You are solely responsible for keeping your Account and Account password secure and for any consequence resulting from your failure to do so. You should never publish, distribute, or post login information for your Account.
We have the right to disable any username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms. You can always delete your Account by emailing us at support@photon.health.
Changing Fees and Charges
We may at any time and from time to time, in our sole discretion, change the fees and charges, or add new fees and charges, in relation to any of the Services. We may also at any time and from time to time, in our sole discretion, change or remove any of the pricing models in place.
Definitions. Capitalized terms have the meanings set forth below or as defined within this Agreement.
“Aggregate Data” has the meaning given in Section 6.2.
“AI Tools” means artificial intelligence and machine learning services or applications that may be integrated into the Platform, including without limitation, third-party large language models.
“Applicable Privacy Laws” means the data protection, data security and privacy laws and regulations of any jurisdiction applicable to the Platform or the Services under this Agreement, including, without limitation, the California Consumer Protection Act (as and where applicable), the CAN-SPAM Act, and the Telephone Consumer Protection Act of 1991.
“BAA” means the business associate agreement contained at Exhibit A.
“Confidential Information” means all non-public information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, that (a) is clearly identified as confidential or proprietary at the time of disclosure, or (b) the receiving party knew or should have known, given the nature of the information and the circumstances of its disclosure, was considered confidential or proprietary. The Photon Technology and any Third-Party Content is Photon’s Confidential Information. The Customer Data, excluding the Customer Marks, is Customer’s Confidential Information. Confidential Information is not Personal Data (which is treated in accordance with Section 7 (Data Security)) or PHI (which is treated in accordance with the BAA).
“Customer Data” means any data or information uploaded or transmitted to the Platform by Customer or Users, including from Third-Party Services and the Customer Material. Customer Data does not include Performance Data, Aggregate Data, or data collected by Photon directly from patients independently from Customer.
“Customer Marks” means Customer’s trademarks, tradenames, service marks, and logos.
“Customer Material” has the meaning given in Section 3.2.
“Documentation” means all specifications, user manuals, and other technical materials relating to the Platform that are provided or made available to Customer, and as may be modified by Photon from time to time.
“Fees” means the fees for the Platform and any Services as set forth on the Order Form.
“Healthcare Provider” means a healthcare provider with a unique National Provider Identifier.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended, and the implementing rules and regulations thereunder related to privacy, security, and breach notification.
“Initial Term” has the meaning given in Section 9.1 (Term).
“Order” means each fulfillment request sent through the Platform to a pharmacy for one or more prescriptions (which may be triggered by a prescribing Healthcare Provider or the applicable patient).
“Personal Data” means Customer Data that constitutes “personal data,” “personal information,” or “personally identifiable information” defined in Applicable Privacy Laws or information of a similar character regulated thereby, except that Personal Data does not include such information pertaining to Photon’s business contacts who are Customer personnel, such information received by Photon directly or from other sources (such as its other customers) independent of Photon’s relationship with Customer, or such information that is PHI.
“Performance Data” means general performance and usage data about Customer’s use of the Platform and the Services (such as technical logs) and the performance of the Platform and the Services. Performance Data does not include any Customer Data.
“PHI” has the meaning as set forth in 45 CFR Section 160.103.
“Photon Technology” means the Platform, Performance Data, the Aggregate Data, the Documentation, any deliverables provided as part of Services, and all applicable software, data, content, or technical information used by Photon or provided to Customer in connection with the foregoing.
“Platform” means Photon’s proprietary software and services that enable prescribers to authorize, transmit, and monitor digital prescriptions and streamline medication access for patients, including the underlying technology, and the content that is made available thereon, and as may be modified and updated from time to time.
“Renewal Term” has the meaning given in Section 9.1 (Term).
“Services” has the meaning given in Section 3.1.
“Third-Party Content” means content made available on the Platform, such as prescription pricing and availability information, which is supplied by third parties to Photon.
“User” means the Healthcare Providers or their authorized delegates and the clinical provider organizations (as applicable) that are authorized by Customer to access the Platform pursuant to Customer’s rights under this Agreement.
PHOTON Service; ACCESS; RESTRICTIONS.
Access. Subject to the terms and conditions of this Agreement, Photon hereby grants to Customer a limited, revocable, non-transferable (except as provided in Section 13.2), non-exclusive right during the Order Term to enable its Users to access and use the Platform and accompanying Documentation solely for such Users’ internal business purposes. Before enabling a User to have access to the Platform, Customer shall ensure that each User has agreed to comply with the terms of this Agreement including, but not limited to, Sections 2.3 (Restrictions), 2.6 (Third-Party Services), 2.7 (Third-Party Content), 4 (Customer Responsibilities), 6 (Proprietary Rights), 8 (Confidential Information), 10.3 (General Disclaimer) and 10.4 (No Professional Advice). Customer shall be responsible for enforcing these terms against each User. Customer will immediately notify Photon if Customer becomes aware of any material breach of any provision of this Agreement by any User. Customer also acknowledges that Users may be required to agree to Photon’s standard terms of service for the Platform before accessing and using the Platform.
Access Credentials. Each User will be provided access to and use of the Platform through unique and confidential account credentials. These credentials cannot be shared or used by more than one individual User to access the Platform. Customer is responsible for ensuring that Users maintaining the confidentiality of all account credentials and is solely responsible for all activities that occur under these User accounts. Customer will promptly notify Photon of any actual or suspected unauthorized use or access to its or any User’s account.
Restrictions. Customer shall not, and shall require that any User does not: (a) allow any third party to access the Photon Technology except as expressly allowed herein; (b) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Photon Technology for the benefit of any unauthorized third party; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Photon Technology, except as permitted by law; (d) use any automated software, devices, or other processes to “scrape,” extract, or download content or data from the Photon Technology (other than Customer Data) without the prior written consent of Photon; (e) interfere in any manner with the operation of the Photon Technology or the hardware and network used to operate the same, or attempt to probe, scan, or test vulnerability of the Photon Technology without the prior written consent of Photon; (f) attempt to access the Photon Technology through any unapproved interface; (g) modify, copy, or make derivative works based on any part of the Photon Technology; (h) access or use the Photon Technology to build a similar or competitive product or service or otherwise engage in competitive analysis or benchmarking; (i) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Photon or its licensors on the Photon Technology or any copies thereof; (j) publicly display, distribute or disseminate the Third-Party Content or any other information or data provided on the Platform; or (k) otherwise use the Photon Technology in any manner that exceeds the scope of use permitted under Section 2.1 or in a manner inconsistent with applicable law, the Documentation, the Order Form, or this Agreement.
Suspension. Photon reserves the right to suspend Customer’s or any User’s access to the Platform for any failure, or suspected failure, to comply with Section 2.3. Photon may also suspend Customer’s or any User’s access to all or any part of the Platform, without notice and without incurring any resulting obligation or liability, if Photon believes, in its good faith and reasonable discretion, that Customer’s or any User’s use of the Platform poses a risk to the security or integrity of Photon’s systems, interferes with Photon’s ability to reliably provide the Platform to other customers, or may subject Photon to liability. Photon shall use reasonable efforts to notify Customer prior to suspension and shall restore access to Customer or the applicable User as soon as such risks no longer apply.
Support. Subject to the terms and conditions of this Agreement, Photon will exercise commercially reasonable efforts to: (a) provide support to Customer for the use of the Platform; and (b) keep the Platform operational and available to Customer, in each case in accordance with industry standards and its standard policies and procedures. Photon’s support obligation is limited to Customer only and is not obligated to provide any support directly to any User.
Third-Party Services. Certain features of the Platform may use or integrate third-party websites, services, technology, or applications accessible or otherwise connected to the Platform but not provided by Photon, which may include software-as-a-service products and AI Tools, or Customer’s own systems, such as Customer’s EMR or EHR software (collectively, “Third-Party Services”). In using such Third-Party Services, Photon may share Customer Data with providers of such Third-Party Services. Customer acknowledges and agrees that Photon shall be under no obligation to inquire into and shall not be liable for any damages, other liabilities, or harm to any person or entity relating to any losses, delays, failures, errors, interruptions, or loss of data occurring directly or indirectly by reason of Third-Party Services or any other circumstances beyond Photon’s control. Customer acknowledges and agrees that, for the purposes of Applicable Privacy Laws, each of Photon and providers of any Third-Party Services are no- processors or subprocessors of Personal Data with respect to each other.
Third-Party Content. Photon may make available certain Third-Party Content on the Platform. Customer acknowledges that such Third-Party Content is out of the control of Photon and is provided by Photon for informational purposes only. Customer shall only use, and procure that each User only uses, the Third-Party Content in support of the specific patient to which such Third-Party Content is provided. Customer shall not, and shall ensure that no Users, aggregate, share, disclose, or distribute any Third-Party Content, including but not limited to, use for any AI training, machine learning or content generation purposes. Access to such Third-Party Content may also be subject to additional terms and conditions. Customer acknowledges that the Third-Party Content is owned third parties and such third parties may enforce their rights directly against Customer or any User for any breach of this Section.
SERVICES.
Services. Photon will provide the following services in connection with the Platform: (a) onboarding and training Customer with respect to the use of the Platform; (b) the support services described on the Order Form; (c) communication with Customer, patients, pharmacies and other providers, as applicable, to facilitate digital prescriptions; and (d) any other services set forth in the Order Form (“Services”). The Services and any deliverables provided as a part thereof may only be used in conjunction with the Platform. All Services will be provided remotely unless otherwise agreed in the Order Form. Photon may leverage AI Tools in the performance of the Services, subject to the terms and conditions of this Agreement.
Cooperation. Customer will reasonably cooperate with Photon in the performance of the Services. Such cooperation may include (a) the appointment of point(s) of contact for all matters related to the Services, (b) the provision of reasonable remote network access to those Customer systems that utilize the Services, and (c) making suitably trained personnel with sufficient knowledge of Customer’s systems available during normal business hours. Customer acknowledges that in order to perform the Services, Photon may be required to have access to certain Customer software or other material of Customer or Customer’s suppliers (“Customer Material”) and Photon may use such Customer Material in the performance of the Services.
CUSTOMER RESPONSIBILITIES.
Customer Data. As between the parties, Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer shall, and shall require that all Users, obtain all third-party licenses, consents and permissions as required of Customer and the applicable User, as well as needed for Photon to use, disclose, copy, store and process the Customer Data to provide the Platform and the Services and exercise the rights granted herein. Without limiting the foregoing, Customer is responsible for obtaining, and ensuring that all Users obtain, from third parties (including all patients) all necessary consents, authorizations and rights in accordance with all Applicable Privacy Laws to share Customer Data with Photon and for Photon to use and disclose the Customer Data in any format for the purposes set forth in this Agreement, including, without limitation, to contact and communicate with patients, healthcare systems, Healthcare Providers, authorized delegates, payors, pharmacy benefit managers, prescription data providers, insurance companies and pharmacies on Customer’s behalf, whether via digital integration, e-mails, faxes, text messages, or telephone calls, including through the use of Third-Party Services. Customer shall ensure that the Customer Data will not: (a) be deceptive, defamatory, obscene, pornographic, or unlawful; (b) knowingly contain any viruses, worms or other malicious computer programming codes intended to damage the Platform; or (c) violate the intellectual property, privacy, or other rights of any third party or violate any Applicable Privacy Laws.
Prescriptions. As part of the Platform and the Services, Photon provides a platform for healthcare providers to manage prescriptions on behalf of patients.Photon does not provide any medical advice, legal advice, or representations regarding medical issues associated with Customer or Users, or services offered by Customer, including but not limited to any compliance obligations or steps necessary to comply with any state or federal regulations. Customer is responsible for ensuring each User complies with this Agreement, applicable law and professional standards in using the Platform and shall be liable for all acts and omissions of any User as relates to their access and use of the Platform.As between the parties, Customer is solely responsible for ensuring that a given prescription or Order issued by a User is correct and appropriate for the applicable patient, and for any death, personal injury or damage that results from the consumption of any prescription. Customer shall not, and shall ensure its Users do not, provide access to the Platform (whether through sharing its username and password or otherwise) to any unauthorized third party or User. Access to the Services for the purposes of ordering prescriptions shall be strictly limited to Healthcare Providers who are properly licensed or authorized to prescribe.Photon merely provides technology that enables the transmission of a prescription from a provider to a pharmacy and any disclosures are made by Photon acting on behalf of Customer or a User. Customer acknowledges that the Platform allows Customer to give patients the option to select the pharmacy from which to pick up or receive their prescriptions. In using such Platform feature, Customer acknowledges that Photon will hold the prescription written by Customer or a User in escrow until such time that the patient selects a pharmacy, and Customer authorizes Photon to provide such feature on its behalf as its agent.
Broad Network. Customer acknowledges that Photon has a broad network supporting the Platform and the Services. Accordingly, Customer acknowledges that Photon may have independent relationship with various different entities involved in the provision of the Platform, including patients, healthcare systems, payors, prescription data providers, pharmacy benefit managers, insurance companies and pharmacies. Nothing in this Agreement is intended to limit how Photon interacts with such third parties independently from the provision of the Platform and Services to Customer.
Fees and Payment.
Fees. Customer will pay Photon the Fees. Fees are non-refundable (except as expressly set out in this Agreement or the Order Form) and are not eligible for set off. Customer will pay the Fees within thirty (30) days of receipt of an invoice. Unless otherwise stated on the Order Form, at the end of the Initial Term or any subsequent Renewal Term of an Order Form, Photon reserves the right to increase the Fees payable for the forthcoming Renewal Term upon written notice to Customer at least sixty (60) days prior to the commencement of the Renewal Term. Such revised Fees shall take effect immediately upon the commencement of the Renewal Term.
Taxes. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer will pay, all sales, use, excise, and other taxes and applicable export and import fees, customs duties, and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Photon’s income.
Late Payment. Payments by Customer that are past due will be subject to interest at the rate of one and one-half percent (1.5%) per month (or, if less, the maximum allowed by applicable law) of that overdue balance. Photon reserves the right (in addition to any other rights or remedies Photon may have) to suspend Customer’s access to the Platform if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate, and up-to-date Customer billing and contact information.
PROPRIETARY RIGHTS.
Photon Technology. Customer acknowledges that Photon retains all right, title, and interest in and to the Photon Technology, including any enhancements, improvements, or derivatives thereto, and that the Photon Technology is protected by intellectual property rights owned by or licensed to Photon. Other than as expressly set forth in this Agreement, no license or other rights in the Photon Technology are granted to the Customer.
Customer Data and Material. Customer retains all right, title, and interest in and to the Customer Data and Customer Material, including any enhancements, improvements, or derivatives thereto. Customer hereby grants to Photon a non-exclusive, worldwide, royalty-free and fully paid-up license to access and use Customer Data and Customer Materials: (a) during the Term to provide the Platform and any accompanying Services to Customer as set forth in this Agreement, and (b) during the Term and thereafter, for Photon’s lawful business purposes, including to improve the Platform and Photon’s other products and services (including any artificial intelligence models), and to create aggregated and de-identified data (“Aggregate Data”).
Performance Data. Photon may generate Performance Data to operate, improve, analyze, and support the Platform and for other lawful business purposes.
Feedback. Customer hereby grants Photon a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Platform any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Platform. Photon will not identify Customer as the source of any such feedback.
Data Security.
Data Security. During the Term, Photon will implement and maintain commercially reasonable administrative, technical, and physical measures designed to safeguard against unauthorized access to or use or disclosure of Customer Data, including any Personal Data. Customer and its Users will be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other usernames and passwords required to access the Platform. In the event Photon becomes aware of any loss or unauthorized access, disclosure, or use of any Personal Data (“Security Incident”), Photon will (a) promptly notify Customer in writing of such Security Incident, and (b) take commercially reasonable steps designed to (1) identify the cause of such Security Incident, (2) minimize the harm associated therewith and (3) prevent reoccurrence thereof. Any notification of any Security Incident will describe, to the extent known, details of the Security Incident, including steps taken by Photon, or that Photon recommends that Customer take, to mitigate the potential risks. Photon’s notification of or response to a Security Incident will not be construed as Photon’s acknowledgement of any fault or liability with respect to the Security Incident.
Privacy. Photon will process Personal Data only in accordance with Customer’s instructions to Photon contained in the Agreement. This Agreement is a complete expression of such instructions, and Customer’s additional instructions will be binding on Photon only pursuant to an amendment to this Agreement signed by both parties. By entering into this Agreement, Customer instructs Photon to process Personal Data to provide the Platform and to perform its other obligations and exercise its rights under the Agreement. Customer shall ensure (and is solely responsible for ensuring) that it has given such notices to and obtained such consents and permissions from all relevant third parties, and has reserved all rights, in each case, as may be required under applicable law or otherwise for Photon to process Personal Data as contemplated by the Agreement. Without limiting the foregoing, unless agreed otherwise between the parties, Customer will be solely responsible for obtaining from third parties (including all patients) all necessary consents, authorizations, and rights in accordance with all Applicable Privacy Laws to share Customer Data with Photon and for Photon to use and disclose the Customer Data submitted by or on behalf of Customer for the purposes set forth in this Agreement, including, without limitation, to contact and communicate with patients on Customer’s behalf, whether via e-mails, text messages, telephone calls, or other mechanisms.
Business Associate. In providing the Platform and the Services hereunder, Photon may be a “business associate” (as defined at 45 C.F.R. 160.103) of Customer, and as such, in those instances where PHI is received by Photon, for purposes of complying with HIPAA, the parties agree that the terms of the BAA attached hereto as Exhibit A shall apply and is hereby incorporated herein. In the event of a conflict between the terms of this Agreement and the BAA, the BAA shall govern and control solely to the extent it relates to any PHI.
Confidential Information.
Restrictions. As a recipient of Confidential Information, each party agrees that it will (a) use the Confidential Information of the disclosing party only as set forth in this Agreement, (b) not disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement, (c) limit access to the Confidential Information of the disclosing party to its employees and contractors who have a need to know such information to use or provide the Platform, and ensure that such employees or contractors are bound by confidentiality obligations at least as protective as those contained herein, and (d) protect the Confidential Information of the disclosing party from unauthorized use, access, or disclosure in a reasonable manner.
Exclusions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information that (a) is or becomes generally known and available to the public through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession without confidentiality restrictions prior to disclosure by the disclosing party, (c) is received without a confidentiality restrictions from a third party with the right to make such a disclosure, or (d) is independently developed by the receiving party. The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that the receiving party will, if permitted by law, provide advance notice of the disclosure to the disclosing party and cooperate so that the disclosing party has the opportunity to obtain appropriate confidential treatment for such Confidential Information.
Term and Termination.
Term. The term of this Agreement will commence on the Order Form Effective Date and continue until the Order Form has expired, unless terminated earlier in accordance with the terms of this Agreement (the “Term”). Each Order Form specifies the Initial Term, or if none is specified, an initial term of one (1) year (“Initial Term”) and, unless the Order Form specifies that the Order Form will not autorenew, the Order Form will automatically renew for successive one (1) year terms (each a “Renewal Term”, and together with the Initial Term, the “Order Term”), unless either party provides no less than thirty (30) days’ written notice of its intent to terminate the Order Form prior to the end of the then-current term.
Termination. Either party may terminate this Agreement upon written notice if: (a) the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach, or (b) the other party: (i) becomes insolvent, (ii) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement, or (iii) makes an assignment for the benefit of its creditors.
Termination for Legal Cause. Photon may terminate this Agreement with immediate effect: (a) following any change to or enactment of any applicable law that renders any material portion of the Platform illegal or otherwise has a material adverse effect upon a party’s ability to exercise its rights or perform its obligations under this Agreement; or (b) if Photon is required or directed to do so by any governmental authority; provided, however, that, unless prohibited by applicable law or such governmental authority, prior to terminating this Agreement, Photon will first engage Customer in good faith negotiations for at least thirty (30) days to make mutually agreeable changes to the Platform to address such illegality, effect, or direction giving rise to such termination right and thereafter the parties will take reasonable best efforts to make such changes, and will terminate this Agreement only if such negotiations are unsuccessful in reaching an agreement on such changes.
Effect of Termination. Upon the expiration or termination of this Agreement for any reason, the rights and licenses granted to Customer hereunder will immediately terminate, and Customer will cease use of the Platform and Documentation. Termination of this Agreement will not relieve Customer of its obligation to pay all Fees that accrued prior to such termination. Each party will return to the other or destroy all property (including any Confidential Information) of the other party, except to comply with Section 9.5 below. Notwithstanding the foregoing, each party may retain the Confidential Information of the other if it is required to keep for compliance purposes under applicable law or in accordance with its standard backup procedures, subject to the requirements in Section 7 (Data Security) and Section 8 (Confidential Information). Sections 1 (Definitions), 2.3 (Restrictions), 2.6 (Third-Party Services), 2.7 (Third-Party Content), 4 (Customer Responsibilities), 5 (Fees and Payment), 6 (Proprietary Rights), 8 (Confidential Information), 9.4 (Effect of Termination), 9.5 (Data Export), 10.2 (General Disclaimer), 10.4 (No Professional Advice), 11 (Indemnity), 12 (Limitation of Liability) and 13 (General Provisions).
Data Export. During the Order Term and for thirty (30) days following termination of the Order Term or this Agreement, Photon will make all Customer Data available for export from the Platform. Following this window for the export of Customer Data, Photon may irretrievably erase any Customer Data stored on the Platform in complying with Section 8.1 (Confidential Information), subject to Photon’s obligations under applicable law or data retention policies.
warranty; disclaimer.
Limited Warranties. Photon warrants that the Platform, when used in accordance with the Documentation and the terms of this Agreement, will operate as described in the Documentation in all material respects. If Customer notifies Photon of any breach of the foregoing warranty, Photon will, as Customer’s sole and exclusive remedy, use commercially reasonable efforts to repair and fix the non-conforming service. Photon also warrants that the Services will be performed in a professional and workmanlike manner. If Customer notifies Photon of any breach of the foregoing warranty, Photon will, as Customer’s sole and exclusive remedy, at its option either re-perform the Services or refund sums paid for such Services.
Ineligible Persons. Each party represents and warrants to the other that neither it nor any of its directors, officers or employees (or Users, in the case of Customer): (a) are currently excluded, debarred, or otherwise ineligible to participate in any federal health care program as defined in 42 U.S.C. Section 1320a-7b(f) (“the Federal Healthcare Programs”); (b) have been convicted of a criminal offense related to the provision of health care items or services and not yet been excluded, debarred, or otherwise declared ineligible to participate in the Federal Healthcare Programs nor been charged or convicted of an offense related to identity theft, credit card fraud or violation of federal or state privacy or security laws, and (c) are under investigation or otherwise aware of any circumstances which may result in such party being excluded from participation in the Federal Healthcare Programs. This shall be an ongoing representation and warranty during the Term, and each party shall immediately notify the other of any change in the status of the representations and warranty set forth in this Section. Any breach of this section shall give either party the right to terminate the Agreement immediately for cause.
General Disclaimer. Except as expressly provided herein, and to the maximum extent permitted by applicable law: (a) the Photon Technology is provided “as is” and “as available” and (b) Photon and its suppliers make no other warranties, express or implied, by operation of law or otherwise, and hereby expressly disclaim any and all other warranties including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title, or Non-infringement. Photon does not warrant or represent that the Photon Technology will be free from bugs, uninterrupted, or error-free, or make any other representations regarding the use, or the results of the use, of the Photon Technology in terms of correctness, accuracy, reliability, or otherwise. PHOTON RELIES ON THIRD PARTY DATA SUPPLIERS FOR CERTAIN INFORMATION DISPLAYED ON THE PLATFORM, SUCH AS THE THIRD-PARTY CONTENT, AND SUCH THIRD-PARTY CONTENT MAY BE INACCURATE OR INCOMPLETE AND PHOTON MAKES NO GUARANTEE WITH RESPECT TO SUCH THRID-PARTY CONTENT. Customer acknowledges and agrees that Photon is not liable, and Customer agrees it will not seek to hold Photon liable, for the conduct of third parties, including any Third-Party Service OR THIRD-PARTY CONTENT, and that the risk of injury from any third-party rests entirely with Customer. IN NO EVENT WILL PHOTON BE RESPONSIBLE OR LIABLE FOR ANY OF THE CUSTOMER RESPONSIBILITIES SPECIFIED IN SECTION 4 (CUSTOMER RESPONSIBILITIES).
No Professional Advice. Photon does not recommend medications or pharmacies or provide any medical, healthcare, or other professional advice. THE PLATFORM, INCLUDING ANY CONTENT THEREIN, IS NOT INTENDED, AND CUSTOMER AGREES NOT TO RELY ON, AND AGREES TO INSTRUCT USERS NOT TO RELY ON THE CONTENT REGARDING ANY PRESCRIPTIONS AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, VERBAL COUNSELING, PHYSICAL DEMONSTRATION OF AN ADMINISTRATION TECHNIQUE, OR JUDGMENT OF PHARMACISTS, PHYSICIANS, OR OTHER HEALTHCARE PROFESSIONALS.
Indemnity.
By Photon. If any action is instituted by a third party against Customer based upon a claim that the Photon Technology, as delivered and when used in accordance with this Agreement, infringes any third party’s intellectual property rights, Photon will defend such action at its own expense on behalf of Customer and will pay all damages attributable to such claim that are finally awarded against Customer or paid in settlement. If the Photon Technology is enjoined or, in Photon’s determination is likely to be enjoined, Photon will, at its option and expense: (a) procure for Customer the right to continue using the Photon Technology, (b) replace or modify the Photon Technology so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Photon Technology and refund any amounts previously paid for the Photon Technology attributable to the remainder of the then-current Order Term. Photon will have no obligation under this section or otherwise with respect to any infringement claim based upon: (i) any use of the Photon Technology not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Photon Technology in combination with other products, equipment, software or data not supplied by Photon, including Third-Party Services or Third-Party Content; or (iii) any modification of the Photon Technology by any person other than Photon or its authorized agents. This Section sets forth the entire obligation of Photon and the exclusive remedy of Customer against Photon for any claim that the Photon Technology infringes a third party’s intellectual property rights.
By Customer. If any action is instituted by a third party against Photon relating to: (a) Customer’s or a User’s actual or alleged breach of Section 2.3 (Restrictions), Section 2.7 (Third-Party Content) or Section 4 (Customer Responsibility); (b) a failure by Customer to passthrough the terms of this Agreement to any User; or (c) any claim by or on behalf of a patient arising out of a prescription ordered by Customer or a User, Customer will defend such action at its own expense on behalf of Photon and will pay all damages attributable to such claim that are finally awarded against Photon or paid in settlement of such claim.
Procedure. Any party that is seeking to be indemnified under the provision of this Section 11 (the “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), (b) give the Indemnifying Party the sole control over the defense of such Claim, and (c) reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party shall not agree to any settlement that requires the Indemnified Party to admit fault or to take or refrain from taking any action without the Indemnified Party’s prior written consent.
Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL Photon OR Customer BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT (INCLUDING ANY EXHIBIT). IN NO EVENT WILL Photon’s OR Customer’s AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT (INCLUDING ANY EXHIBIT) EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY Photon FROM Customer PURSUANT TO THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL NOT APPLY TO PAYMENT AND INDEMNITY OBLIGATIONS (TO THE EXTENT PAID TO THE THIRD-PARTY PLAINTIFF), TO BREACHES OF SECTION 2.3 (RESTRICTIONS) OR SECTION 8 (CONFIDENTIAL Information) OR TO LIABILITIES THAT CANNOT BE LIMITED BY LAW. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS.
General Provisions.
Governing Law; Forum. This Agreement will be governed by, and all disputes arising under or in connection with this Agreement will be resolved in accordance with, the laws of the State of New York, exclusive of conflict or choice of law rules. Each party agrees that any action, suit, or other proceeding based upon or arising from this Agreement will be brought and maintained only in a federal or state court of competent jurisdiction located in Manhattan County, New York. Each party consents to the mandatory jurisdiction and venue of such courts and waives any right to object to jurisdiction and venue. Notwithstanding the foregoing, nothing will prevent a party from seeking relief in any court of competent jurisdiction for any misuse or misappropriation of that party’s intellectual property rights or Confidential Information.
Assignment; Subcontractors. Neither party may assign this Agreement, including any rights or obligations arising hereunder, without the prior written consent of the other, except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement will be binding upon each party’s respective permitted successors and assigns. Customer agrees that Photon may subcontract certain aspects of the Platform or Services to qualified third parties, provided that any such subcontracting arrangement will not relieve Photon of any of its obligations hereunder.
Order of Precedence. In the event of a conflict between the Terms and Conditions, the Order Form, or an exhibit to the Agreement, the following order of precedence will govern: the Terms and Conditions, the Order Form, and then the other exhibits, provided that the BAA shall prevail with respect to any PHI. Notwithstanding the foregoing, the Order Form will take precedence over the Terms and Conditions if the Order Form expressly states which sections of these Terms and Conditions are intended to be superseded by the Order Form.
Notices. Any notice under this Agreement must be given in writing to the other party. Notices for Customer shall be sent to the email or physical address set forth on the Order Form and notices for Photon shall be sent to 228 Park Avenue South – PMB 91210, New York, NY 10003 or via email to leadership@photon.com Each party may provide updated addresses to the other party in writing. Notices will be deemed to have been given upon: (a) receipt (or when delivery is refused) if delivered in person or sent by recognized courier service, or (b) delivery is sent by email. To be deemed effective, any email notice of the other party’s material breach pursuant to Section 9.2 (Termination) must reference Section 9.2.
Force Majeure. Any delay in the performance of any duties or obligations of either party (except for the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outage, or any other event beyond the control of such party (collectively, a “Force Majeure Event”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible. If the Platform is unavailable or materially degraded for a continuous period of fourteen (14) days due to a Force Majeure Event, either party will have the right to terminate the Agreement, and Photon will refund any amounts previously paid for the Platform attributable to the remainder of the then-current Order Term.
Customer Marks’ Use; Publicity. Photon may use Customer’s name and Customer Marks to identify Customer as a customer on the Platform, and on Photon’s website, social media, and in sales and marketing materials, in the same manner in which it uses the names of its other customers. Photon will use Customer Marks in accordance with Customer’s applicable branding guidelines supplied by Customer, and Photon may not use Customer’s name or Customer Marks in any other way without Customer’s prior written consent.
Export Laws. Customer shall not use, export, re-export, or transfer, directly or indirectly, any products, services, technologies, or data acquired from Photon in violation of the U.S. export laws or regulations. Further, each party shall comply with all relevant export laws and regulations of the U.S. (“Export Laws”) to assure that neither any deliverable, if any, nor any direct product thereof is (1) exported, directly or indirectly, in violation of Export Laws or (2) intended to be used for any purposes prohibited by the Export Laws, including without limitation nuclear, chemical, or biological weapons proliferation. Customer further represents that (i) Customer is not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country, and (ii) Customer is not listed on any U.S. government list of prohibited or restricted parties.
Anti-Bribery. Neither Customer nor any of its Users, personnel, directors, affiliates, or officers or any other person acting on their behalf has directly or indirectly made any bribes, rebates, payoffs, influence payments, kickbacks, illegal payments, illegal political contributions, or other payments, in the form of cash, gifts, or otherwise, or taken any other action, in violation of the Foreign Corrupt Practices Act of 1977 or any other anti-bribery or anti-corruption law (collectively, the “Anti-Bribery Laws”). Customer is not, and has not been, the subject of any investigation or inquiry by any governmental body with respect to potential violations of Anti-Bribery Laws. Customer shall immediately notify Photon of any breach of, suspected breach of, or any investigation into the suspected breach of, the Anti-Bribery Laws by it or any of the aforementioned persons and, upon such notice, Photon may, in its discretion, immediately terminate this Agreement.
U.S. Government Restricted Rights. If Customer is a government end user, then this provision also applies to Customer. The software contained within the Platform and provided in connection with this Agreement has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227- 7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.
Miscellaneous. This Agreement (as modified by the parties from time to time) is the entire understanding and agreement of the parties and supersedes any and all previous and contemporaneous understandings. Only a written amendment signed by both parties may modify this Agreement. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. There are no third-party beneficiaries of this Agreement. This Agreement may be executed in counterparts, which taken together will form one legal instrument.
Comments, Concerns and Complaints
All feedback, comments, requests for technical support and other communications relating to the Services should be directed to: support@photon.health.