Platform Terms of Service
Last Updated: September 10th, 2025
Welcome to Photon!
Photon Health, Inc. (“Photon”) is the owner and operator of the Photon platform that enables prescribers to authorize, transmit, and monitor digital prescriptions and streamline medication access for patients (the “Platform”, which includes the underlying technology, and the content that is made available thereon, and as may be modified and updated from time to time).
These Platform Terms of Service (“Terms”) govern the use of and access to the Platform and services provided in connection with the Platform and apply to the following persons:
customers of Photon that have entered into any written or electronic order directly with Photon that incorporates these Terms by reference (“Order Form”); and
end customers of Photon that access the Platform through a Photon partner organization (“Partner”) pursuant to an agreement between Photon and such Partner (“Partner Agreement”).
The customers described in (a) and (b) above are each a “Customer”. For clarity, these Terms do not apply to customers of Photon that have executed a separate Master Services Agreement directly with Photon.
By executing an Order Form, clicking “I Accept” or otherwise electronically accepting these Terms, accessing or using the Platform or authorizing or permitting any User to access or use the Platform: (1) Customer agrees to be bound by these Terms as of the date of such acceptance or the date of access to or use of the Platform (as applicable); and (2) the individual accepting these Terms represents and warrants that it has the authority to enter into these Terms on behalf of Customer. If Customer does not agree to be bound by these Terms, then Customer may not access or use the Platform.
In the event of any inconsistency between these Terms and a Partner Agreement, the Partner Agreement shall prevail.
In the event of any inconsistency between these Terms and an Order Form, the Terms shall prevail except that the Order Form will take precedence over the Terms if the Order Form expressly states which sections of these Terms are intended to be superseded by the Order Form.
Definitions. Capitalized terms have the meanings set forth below or as otherwise defined within these Terms.
“Aggregate Data” has the meaning given in Section 5.2 (Customer Data and Material).
“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 these Terms, including, without limitation, the California Consumer Protection Act (as and where applicable), HIPAA, the CAN-SPAM Act, and the Telephone Consumer Protection Act of 1991.
“BAA” means the business associate agreement available here: http://www.photon.health/baa.
“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.
“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 any data collected by Photon independently from Customer.
“Customer Marks” means Customer’s trademarks, tradenames, service marks, and logos.
“Customer Material” has the meaning given in Section 3.6 (Cooperation).
“Documentation” means all specifications, user manuals, and other technical materials relating to the Platform that are provided or made available by Photon 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 or within the Platform.
“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 8.1 (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).
“Order Term” means the period of time in which Customer is permitted to access the Platform as provided in an Order Form or the Partner Agreement, as applicable.
“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 and its Users’ 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 and any technology or services incorporated therein (including technology provided by Photon’s licensors and suppliers), 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. The Platform excludes any Third-Party Services.
“Renewal Term” has the meaning given in Section 8.1 (Term).
“Services” means any services provided by Photon to Customer as set forth on the Order Form or in the Partner Agreement, as applicable.
“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.
“Third-Party Services” means 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.
“User” means the Healthcare Providers or their authorized delegates that are authorized by Customer to access the Platform pursuant to Customer’s rights under these Terms.
Platform Access; Restrictions.
Access. Subject to the terms and conditions of these Terms, Photon hereby grants to Customer a limited, revocable, non-transferable (except as provided in Section 12.2), 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. Customer shall be responsible for each User’s compliance with these Terms. Customer will immediately notify Photon if Customer becomes aware of any material breach of any provision of these Terms by any User.
Account; Access Credentials. To access the Platform and associated Services, Customer may be required to create a user account (“Account”). Customer is solely responsible for any activity that occurs through its Account. Customer agrees to provide Photon with complete, accurate, and updated information for its Account at all times. Customer represents and warrants that all information that it submits upon creation of its Account is accurate and truthful. Photon will provide each User with 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 maintain the confidentiality of all Account credentials and is solely responsible for all activities that occur under these Users’ Accounts. Customer will promptly notify Photon of any actual or suspected unauthorized use or access to its or any User’s account. Photon has the right to disable any username, password or other identifier, whether chosen by Customer or provided by Photon, at any time in its sole discretion for any or no reason, including if, in Photon’s opinion, Customer has violated any provision of these Terms.
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) use the Photon Technology in a manner which may adversely affect the use of thereof or damage, corrupt, tamper with or infect the Photon Technology, 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 (Access) or in a manner inconsistent with applicable law, the Documentation, the Order Form, or these Terms.
Suspension. Photon reserves the right to suspend Customer’s or any User’s access to the Platform for any failure to comply with Section 2.3 (Restrictions). Photon may also suspend Customer’s or any User’s access to all or any part of the Platform, 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. Customers that access the Platform through a Partner may also have their access suspended or terminated in the event of non-payment or a breach by Partner of the Partner Agreement.
Support. Subject to the terms and conditions of these Terms, Photon will exercise commercially reasonable efforts to: (a) provide support to Customer and Users for the use of the Platform; and (b) keep the Platform operational and available to Customer and Users, in each case in accordance with 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 Services. In using such Third-Party Services, Photon may share Customer Data with providers of such Third-Party Services. Third-Party Services are not under the control of Photon and Photon is not responsible for any Third-Party Services.
Third-Party Content. Photon may make available certain Third-Party Content on the Platform. 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. 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 2.7 (Third-Party Content).
Supplemental Terms. Customer’s or its Users’ use of certain features and functionality of the Platform may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will be presented to Customer for acceptance when Customer signs up to use the supplemental features or functionality on the Platform. If these Terms are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental features or functionality.
Customer Responsibilities.
Customer Data. As between the parties, Customer will have the sole responsibility for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data (including all prescription information) and Photon is not responsible for verifying any of the foregoing. Customer is responsible for obtaining, and ensuring that all Users obtain, from third parties (including all patients) all necessary consents, licenses, authorizations and rights, including in accordance with all Applicable Privacy Laws, to share Customer Data with Photon and for Photon and its suppliers to use and disclose the Customer Data in any format for the purposes of providing the Platform and the Services and exercising the rights set forth in these Terms. This includes, without limitation, and Customer hereby consents to, Photon sending prescriptions, prior authorizations and other requests on Customer’s behalf, and otherwise contacting and communicating 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, inaccurate, misleading, dilutive, defamatory, obscene, offensive, pornographic, unlawful, or otherwise objectionable; (b) knowingly contain any viruses, worms or other malicious computer programming codes intended to damage the Platform; (c) violate or misappropriate the intellectual property, privacy, or other rights of any third party or violate any Applicable Privacy Laws; or (d) contain any promotional content.
Prescriptions. As part of the Platform and the Services, Photon provides a platform for Healthcare Providers to manage prescriptions on behalf of patients. Healthcare Provider users must submit complete and accurate prescription information that conforms to the specifications made available through the Platform. Use of the Platform for the purposes of prescriptions is limited to the United States of America only.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 these Terms, applicable law, state board regulations, prescribing requirements, and professional standards and licenses 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, registered or authorized to prescribe and are not included in the CMS preclusion list or otherwise excluded from participation in federal health care programs.Customer, and not Photon, is responsible for the verification of any such credentials. 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. Users may not transmit prescriptions or Orders through the Platform for controlled substances.
Transmissions. When Customer or Users request that Photon makes a submission to health plans, PBMs, pharmacies or other payors on Customer’s or a User’s behalf, Customer and Users authorize Photon to substitute a phone and fax number provided by Customers and/or Users with a Photon phone and fax number so that the eligibility and any determination will be delivered to Photon and delivered as part of the Services. Customer also authorizes Photon and its suppliers to accept other transmissions that are unrelated to the requests that Customer or Users have submitted using the Platform via Photon’s substituted numbers or contact information that a health plan, PBM or other payor may otherwise send to Customer or User. Photon will use commercially reasonable efforts to forward such unrelated transmissions to Customer or User if Photon is able to determine, with reasonable certainty, that they are intended for Customer or User. However, Photon disclaims any responsibility for failure to deliver to Customer or the User any transmissions which a health plan, PBM or other payor transmits to Photon that are unrelated to the requests Customer or a User submits while using the Services and which Photon has delivered on Customer or a User’s behalf.
Prescription Fulfilment. 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. Photon retains full discretion in how pharmacy and prescription fulfilment options are presented and positioned to patients.
Compliance. Customer and each User shall comply with applicable law in using the Photon Technology. Photon may, but has no obligation to, monitor Customer’s or its Users’ use of the Platform and the Services. Customer will reasonably cooperate with, and make available to, Photon (and its suppliers) information reasonably requested by Photon (such as Healthcare Provider names and NPIs) for the purpose of reviewing and verifying Customer’s compliance with these Terms, including for the purposes of verifying Customer’s appropriate use of the Platform and this Section 3 (Customer Responsibilities). Each party agrees to cooperate with any regulatory investigations, or examinations related to these Terms that involve a party to these Terms.
Cooperation. Customer will reasonably cooperate with Photon in the performance of any 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. 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.
Fees and Payment.
Application. This Section 4 (Fees and Payment) only applies to Customers that have entered into an Order Form directly with Photon. Payment for access to the Platform and the Services for Customers through a Partner are governed by the Partner Agreement.
Fees. Customer will pay Photon the Fees. Fees are non-refundable (except as expressly set out in these Terms 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.
Payment. Customer shall pay for all Fees under its Account in accordance with the prices and billing terms in effect at the time an order is made. By providing Customer’s payment information, Customer agrees that Photon is authorized to immediately invoice Customer’s Account for all Fees and charges due and payable to Photon hereunder and that no additional notice or consent is required. Customer shall immediately notify Photon of any change in Customer’s billing address, debit card, credit card, or other information used for payment hereunder by updating Customer’s Account information. By using the Platform and associated Services, Customer hereby consents and authorizes Photon to share any information and payment instructions Customer provides to complete Customer’s transactions. Please contact leadership@photon.health regarding any billing disputes.
Third-Party Payment Processor. If Customer makes a purchase, Customer will be required to provide its payment details and any additional information required to complete the order directly to Photon’s third-party payment processor, which is currently Stripe, Inc. (“Third-Party Payment Processor”). Customer agrees to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/privacy) and its Terms of Service (currently accessible at https://stripe.com/legal/ssa) and hereby consents and authorizes Photon and the Third-Party Payment Processor to share any information and payment instructions Customer provides with one or more Third-Party Payment Processor(s) to the minimum extent required to complete the applicable transactions. Please note that online payment transactions may be subject to validation checks by Photon’s Third-Party Payment Processor and Customer’s card issuer, and Photon is not responsible if Customer’s card issuer declines to authorize payment for any reason. For Customer’s protection, Photon’s Third-Party Payment Processor uses various fraud prevention protocols and industry standard verification systems to reduce fraud, and Customer authorizes it to verify and authenticate Customer’s payment information. Customer’s card issuer may charge Customer an online handling fee or processing fee. Photon is not responsible for this. In some jurisdictions, Photon’s Third-Party Payment Processor may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
Taxes. All Fees owed by Customer in connection with these Terms 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 these Terms, 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.
Changing Fees and Charges. Photon may at any time and from time to time, in its sole discretion, change the Fees and charges, or add new Fees and charges, in relation to the Platform or any of the Services. Photon may also at any time and from time to time, in its sole discretion, change or remove any of the pricing models in place.
Proprietary Rights.
Photon Technology. Photon retains all right, title, and interest in and to the Photon Technology, including any enhancements, improvements, or derivatives thereto. Other than as expressly set forth in these Terms, 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. Customer hereby grants to Photon and its suppliers 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 these Terms, and (b) during the Term and thereafter, for Photon’s lawful business purposes, including to improve the Photon Technology and related products and services; to perform data analytics in connection with Users’ prescribing practices, outcomes of requests submitted; and to create, use, and disclose aggregated and de-identified data (“Aggregate Data”) for lawful business purposes.
Performance Data. Photon and its suppliers may collect and generate Performance Data to operate, improve, analyze, and support the Photon Technology and for other lawful business purposes.
Feedback. Customer or its Users may give feedback to Photon on the use, operation, and functionality of the Platform, including information about operating results, known or suspected bugs, errors, or compatibility problems, suggested modifications, and user-desired features, functionality, or workflows (collectively, “Feedback”). Photon may use and incorporate such Feedback to improve the Photon Technology without restriction or payment to Customer.
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 on the Platform.
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 shall apply and is hereby incorporated herein. In the event of a conflict between the terms of these Terms and the BAA, the BAA shall govern and control solely to the extent it relates to any PHI. To the extent that the Partner Agreement contains a business associate agreement, Photon’s business associate agreement with the Partner shall apply, unless agreed otherwise in the Partner Agreement.
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 these Terms, (b) not disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under these Terms, (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. These Terms shall apply upon Customer’s acceptance and shall continue for as long as Customer or its Users use the Platform or maintain an Account. For Customers that have an Order Form directly with Photon, 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. Customers that have access to the Platform through a Partner shall have access for the term specified in the Partner Agreement.
Termination. Either party may terminate these Terms upon written notice if: (a) the other party materially breaches these Terms 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 – Partner Agreement. If Customer is accessing the Platform through a Partner, Photon reserves the right to suspend or terminate Customer’s access to the Platform and remove any Customer Content if: (a) Photon is notified by the Partner of Customer’s failure to pay amounts due to the Partner; (b) the Partner fails to pay any amounts due to Photon pursuant to the Partner Agreement with respect to Customer’s access to the Platform; (c) the Partner Agreement expires or terminates; or (d) if Customer or a User breach these Terms. Customer’s sole recourse with respect to any such suspension or termination shall be against Partner.
Termination for Legal Cause. Photon may terminate these Terms 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 these Terms; 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 these Terms, 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 these Terms only if such negotiations are unsuccessful in reaching an agreement on such changes.
Effect of Termination. Upon the expiration or termination of these Terms 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 these Terms will not relieve Customer of its obligation to pay all Fees (if applicable) 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 Error! Reference source not found. (Data Export) 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 6 (Data Security) and Section 7 (Confidential Information). Sections 1 (Definitions), 2.3 (Restrictions), 2.6 (Third-Party Services), 2.7 (Third-Party Content), 3 (Customer Responsibilities), 4 (Fees and Payment), 5 (Proprietary Rights), 7 (Confidential Information), 8.5 (Effect of Termination), Error! Reference source not found. (Data Export), 9.1 (General Disclaimer), 9.4 (No Professional Advice), 10 (Indemnity), 11 (Limitation of Liability) and 12 (General Provisions) shall survive the expiration or termination of these Terms.
Warranty; Disclaimer.
Customer Warranties. Customer represents and warrants that: (a) it has, and its Users have, all of the rights, authorizations and consents required to provide the Customer Data to Photon for the purposes and rights described herein, including as required under applicable law; (b) only Healthcare Providers or their authorized delegates shall issue prescriptions through the Platform; (c) all Users are properly licensed, registered or authorized to prescribe under applicable law through the Platform; (d) its Users shall not submit inaccurate, incomplete or false information through the Platform; and (e) all Users shall comply with these Terms, applicable law and professional licenses, regulations and standards in using the Platform.
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 these Terms 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 MAKE NO WARRANTIES THAT THE INFORMATION AVAILABLE THROUGH THE PHOTON TECHNOLOGY OR ANY THIRD-PARTY SERVICES ARE CORRECT, COMPLETE, OR CURRENT OR THAT COMMUNICATIONS Triggered tHROUGH THE PLATFORM WILL BE TIMELY or always received by the intended recipient. ANY RELIANCE ON SUCH INFORMATION IS AT EACH USER’S OWN RISK. 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, INCOMPLETE, OR OUT OF DATE AND PHOTON MAKES NO GUARANTEE WITH RESPECT TO SUCH THIRD-PARTY CONTENT. Photon is not liable for the conduct of third parties, including any Third-Party Service OR THIRD-PARTY CONTENT. IN NO EVENT WILL PHOTON BE RESPONSIBLE OR LIABLE FOR ANY OF THE CUSTOMER RESPONSIBILITIES SPECIFIED IN SECTION 3 (CUSTOMER RESPONSIBILITIES). CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT PHOTON IS NOT A PHARMACY AND IT MAKES NO WARRANTY AS TO THE ABILITY OF A PHARMACY TO FULFILL ANY PRESCRIPTION TRANSMITTED BY PHOTON TO THE PHARMACY.
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. THE PLATFORM IS NOT INTENDED TO INTERFERE WITH A HEALTH CARE PROVIDER’S EXERCISE OF INDEPENDENT CLINICAL OR PROFESSIONAL JUDGMENT OR TO INDUCE A HEALTH CARE PROVIDER TO INFLUENCE A PATIENT’S CHOICE OF A PRODUCT, INCLUDING PRESCRIPTION PRODUCTS THAT MAY BE PAID FOR, IN WHOLE OR IN PART, BY ANY COMMERCIAL OR GOVERNMENT PAYOR. CUSTOMER ACKNOWLEDGES THE ABSENCE OF A WARNING FOR A GIVEN DRUG OR DRUG COMBINATION SHOULD NOT BE CONSTRUED TO INDICATE THAT THE DRUG OR DRUG COMBINATION IS SAFE, APPROPRIATE OR EFFECTIVE IN ANY GIVEN PATIENT. PHOTON DOES NOT ASSUME ANY RESPONSIBILITY FOR ACTIONS OF CUSTOMER OR USERS WHICH MAY RESULT IN ANY LIABILITY OR DAMAGES DUE TO MALPRACTICE, FAILURE TO WARN, NEGLIGENCE, OR ANY OTHER BASIS.
Partner Services. IF CUSTOMER IS ACCESSING THE PLATFORM THROUGH A PARTNER, CUSTOMER ACKNOWLEDGES THAT PHOTON IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF SUCH PARTNER, INCLUDING ANY SERVICES OR PRODUCTS PROVIDED BY SUCH PARTNER. PHOTON DISCLAIMS ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO CUSTOMER’S FAILURE TO ACCESS THE PLATFORM AS A RESULT OF ANY CONDUCT OR BREACH BY A PARTNER UNDER THE PARTNER AGREEMENT.
Indemnity.
By Customer. Customer will defend, indemnify and hold Photon and its successors, parents, subsidiaries, affiliates, officers, directors, employees, users, and attorneys harmless from and against any and all losses, damages, costs, judgments, liabilities, and expenses (including reasonable attorneys’ fees court costs, and disbursements and costs of investigation, litigation, settlement, judgment, interest, fines and penalties) arising out of or 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 3 (Customer Responsibility); (b) a breach of Section 9 (Warranty; Disclaimer); or (c) any claim by or on behalf of a patient arising out of a prescription ordered by Customer or a User.
Procedure. Any party that is seeking to be indemnified under the provision of this Section 10 (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. The Indemnified Party will have the right, but not the obligation, to participate in the defense of all such Claims with counsel of its choice at its cost and expense.
Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL Photon 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 AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT (INCLUDING ANY EXHIBIT) EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY Photon FROM Customer’S USE OF THE PLATFORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL NOT APPLY TO LIABILITIES THAT CANNOT BE LIMITED BY LAW.
General Provisions.
Governing Law; Forum. These Terms will be governed by, and all disputes arising under or in connection with these Terms 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 these Terms 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 these Terms, including any rights or obligations arising hereunder, without the prior written consent of the other, except that either party may assign these Terms 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. These Terms will be binding upon each party’s respective permitted successors and assigns. Customer agrees that Photon may subcontract aspects of the Platform or Services to qualified third parties.
Notices. Any notice under these Terms 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 or otherwise provided by Partner to Photon (as applicable) and notices for Photon shall be sent to 228 Park Avenue South – PMB 91210, New York, NY 10003 or via email to leadership@photon.health. 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 8.2 (Termination) must reference Section 8.2 (Termination).
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 these Terms 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 sixty (60) days due to a Force Majeure Event, either party will have the right to terminate these Terms, 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.
Relationship of Parties. The parties to these Terms are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by these Terms. Nothing contained in these Terms shall be construed as creating an exclusive relationship between the parties. Photon may have independent relationships 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 these Terms is intended to limit how Photon interacts with such third parties independently from the provision of the Platform and Services to Customer.
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 these Terms.
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 these Terms 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 these Terms and will be prohibited except to the extent expressly permitted by these Terms.
Miscellaneous. These Terms, together with the Order Form or Partner Agreement (as applicable) is the entire understanding and agreement of the parties and supersedes any and all previous and contemporaneous understandings. These Terms may be amended by Photon upon written notice to Customer, provided that any such amendment will not be effective until thirty (30) days after Photon’s provision of such written notice. Following any change, 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. In the event that any provision of these Terms is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of these Terms will remain in full force and effect. Any waiver or failure to enforce any provision of these Terms 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 these Terms are for convenience and are not to be used in interpreting these Terms. As used in these Terms, the word “including” means “including but not limited to.” The parties to these Terms are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by these Terms. There are no third-party beneficiaries of these Terms. These Terms 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.