PARAGON HEALTHCARE, INC.
(and its wholly owned subsidiaries)
CLICK THROUGH AGREEMENT
RE: INFUSION ORDER FORMS
THIS CLICK-THROUGH AGREEMENT (THIS “AGREEMENT”) IS BETWEEN PARAGON HEALTHCARE, INC., AND ITS WHOLLY OWNED SUBSIDIARIES (“PARAGON”) AND YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A PHYSICIAN(S), PROFESSIONAL ORGANIZATION, COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE AN EMPLOYEE OR AGENT OF SUCH PHYSICIAN(S), PROFESSIONAL ORGANIZATION, COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH PHYSICIAN(S), PROFESSIONAL ORGANIZATION, COMPANY (OR OTHER ENTITY). BY CLICKING “ACCEPT”, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, PARAGON IS UNWILLING TO ALLOW YOU TO USE OR LICENSE THE FORMS (AS DEFINED BELOW). THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE UPON WHICH YOU CLICK THE “ACCEPT” BUTTON BELOW. FOR THE PURPOSE OF THIS AGREEMENT, YOU AND, IF APPLICABLE, SUCH PHYSICIAN(S), PROFESSIONAL ORGANIZATION, COMPANY, OR OTHER ENTITY CONSTITUTE(S) “USER”.
- Background; Terms of Service. Paragon manages, owns and/or operates intravenous/injectable infusion centers, pharmacies and provides access to provider / physician order forms to facilitate the patient admission process including ease of prescription, diagnosis and patient treatment (the “Forms”). Upon acceptance of the terms herein, such proprietary Forms are available to Users on Paragon’s website: (paragonhealthcare.com or www.ivcenter.com). User desires to use the Forms in accordance with the terms set forth herein.
- Paragon grants to User a nonexclusive, nontransferable, nonsublicensable, revocable and limited license to access, use, and copy the Forms solely for the purpose of prescribing treatment for patients needing intravenous/injectable and/or infusion therapy at a Paragon owned or managed infusion center or pharmacy. The Forms may be downloaded from the Website for this specific purpose only.
- License Restrictions. Unless expressly otherwise set forth in this Agreement, User will not: (a) resale, sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Forms; (b) modify or alter the Form in any way; (c) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Forms; or (d) cause or permit any other party to do any of the foregoing.
- As between the parties, Paragon owns all right, title and interest in and to the Forms and any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction for any of the foregoing (collectively, “Intellectual Property Rights”) embodied therein. There are no implied licenses in this Agreement, and Paragon reserves all rights not expressly granted under this Agreement.
- Warranty; Disclaimer. Paragon expressly disclaims responsibility for any consequences or liability attributable to or related to any use, non-use, or interpretation of information contained or not contained in the Forms. User represents warrants and covenants that: (a) User will abide by the terms of this Agreement; and (b) User will comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable regulatory or governmental authority, in its performance of this Agreement. Notwithstanding any terms to the contrary in this Agreement, User will remain responsible for acts or omissions of all employees or consultants of User to the same extent as if such acts or omissions were undertaken by User. THE FORMS ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. PARAGON DOES NOT WARRANT OR REPRESENT THAT ANY OF THE FORMS WILL BE FREE FROM ALL ERRORS, OR OMISSIONS. PARAGON DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE FORMS WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE INCLUDING ANY AND ALL (I) WARRANTIES OF MERCHANTABILITY, (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT PARAGON KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. USER ACKNOWLEDGES AND AGREES THAT USER HAS RELIED ON NO WARRANTIES OR REPRESENTATIONS.
- Limitation of Liability. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL PARAGON BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE FORMS, REGARDLESS OF THE TYPE OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF PARAGON HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
- The term of this Agreement will commence on the Effective Date and will remain in effect in perpetuity, unless otherwise terminated in accordance with this Agreement. User may voluntarily terminate this Agreement at any time by deleting and destroying all physical and/or electronic copies of the Forms. Without prejudice to any other rights, in the event of a breach of Sections 2 or 3, Paragon may immediately terminate this Agreement. Upon expiration or termination of this Agreement, all rights granted to User under this Agreement will immediately cease. In addition to all definitions and this sentence, the following sections will survive any termination or expiration of this Agreement: 3, 4, 5, 6, 7 and 8.
- This Agreement is the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the State of Texas applicable to agreements made and to be entirely performed within the State of Texas, without resort to its conflict of law provisions. User may not transfer User’s rights under this Agreement to any third party. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect.