LICENSE AGREEMENT ( August 30, 2016)
PK Software, a PCCA company, (hereinafter "Licensor") and the end user (hereinafter "Licensee") of this copy of "The Compounder Rx" (hereafter the "Software") or of this copy of "The Compounder Lab" (hereafter the "Software") or the hereby agree as follows:
1. Software License. Licensor hereby grants to Licensee a non-exclusive license, to use the Software in connection with the Licensee’s pharmaceutical operations. Each separate pharmacy with its own DEA number must purchase its own software license(s) even if they are using the same database through a network.
2. Software License Fee. As consideration for the non-exclusive license granted herein, Licensee has paid to Licensor a mutually agreed upon purchase price. Upon receipt of the foregoing purchase price, Licensor has provided Licensee with a copy of the Software together with a user’s manual and other instructions and information to assist Licensee with the installation and operation of the Software.
3. Customer Support. The first year of support is included in the initial purchase price of the software. Starting in year two of the software use, Licensor will invoice Licensee for ongoing maintenance and support. In the event Licensee elects to not renew support, In the absence of a renewed annual support contract, Licensor shall charge Licensee an hourly rate equal to the current pricing for licensees with no annual support contract. Licensee has the option of returning to an annual support agreement at any time provided Licensee pays current software support reinstatement fee. Licensor reserves the right to modify or alter the pricing of its customer support services from time to time.
4. No Sublicensing. Licensee hereby agrees that the Software license granted herein is granted solely to Licensee, and may not be sublicensed, copied, distributed, or disclosed to any third party without the prior written consent of Licensor. Licensee’s violation of this provision shall constitute a breach of this Agreement and, in that event, Licensor may terminate this Agreement and seek any and all damages arising due to Licensee’s breach of this Agreement. In the event of a termination for breach as outlined in this paragraph, Licensee hereby agrees to voluntarily deliver all copies of the Software and related documentation to Licensor, whereupon Licensee shall have no further rights to utilize the Software.
5. Ownership. Licensor asserts, represents and warrants that it holds the exclusive right to license the Software, and the right to grant the license set forth in this Agreement, and that it shall do nothing to impair its right to grant and maintain the grant of said license.
6. Indemnification. Licensor hereby agrees to indemnify and hold Licensee harmless from and against any and all claims, demands, causes of action, lawsuits, or other adverse actions based upon the intellectual property rights of Licensor in the Software. The indemnity granted herein is limited to Licensor’s duty to defend Licensor’s intellectual property rights against the claims of third parties, and shall apply to no other claim against Licensee. In the event that Licensee is named as a party to any action in which Licensee is claimed to have violated any third party’s intellectual property rights by using this Software, Licensor hereby agrees to defend Licensee in any such action and to hold Licensee harmless from any such claim.
7. Copy and Protection. Licensor and Licensee agree that each will take all reasonable and necessary steps to protect the Software from the unauthorized copying and theft thereof by others. Licensee hereby agrees not to copy the Software, nor to allow any third party to copy the Software at any time.
8. Term. The term of this Agreement shall commence upon the date of purchase. The term of this Agreement, unless terminated as otherwise provided herein, shall extend for so long as Licensee desires to use the Software. In the event that Licensee ceases use of the Software, but later resumes use of the Software, this License Agreement shall apply to all periods of actual use of the Software by Licensee.
9. Default by Licensee. In the event that Licensee is in material default or breach of any of the provisions of this Agreement, Licensor shall have the right to terminate this Agreement upon sixty (60) days written notice to Licensee; provided, however, that if Licensee, within the sixty (60) day period referred to, cures the said default or breach, this Agreement shall continue in full force and effect; and provided further, that if the default or breach cannot be cured within a sixty (60) day period, such period shall be extended for additional periods as necessary to effect such cure so long as Licensee is utilizing its best efforts, in good faith, to cure the default or breach.
10. Termination Without Cause. Licensee may terminate this Agreement at any time by ceasing its use of the Software.
11. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT LICENSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES OF FITNESS FOR PARTICULAR PURPOSE OR MERCHANTABILITY OR OF ANY OTHER KIND WHATSOEVER EXCEPT AS TO THOSE EXPRESS WARRANTIES SET FORTH HEREIN. LICENSEE ASSUMES ALL THE RISK OF LIABILITY WHATSOEVER RESULTING FROM THE USE OF THE SOFTWARE, WHETHER USED INDEPENDENTLY OR IN COMBINATION WITH OTHER SOFTWARE PROGRAMS. LICENSOR’S LIABILITY TO LICENSEE FOR BREACH OF ANY EXPRESS WARRANTY OR DEFECTIVE SOFTWARE IS EXCLUSIVELY LIMITED, AT LICENSOR’S OPTION, TO REPLACEMENT OF THE SOFTWARE OR RETURN OF THE PURCHASE PRICE OF THE SOFTWARE, AND UNDER NO CIRCUMSTANCES SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES CLAIMED BY LICENSEE. IN NO CASE SHALL THE LICENSOR'S OR PK SOFTWARE'S LIABILITY EXCEED THE PURCHASE PRICE FOR THE SOFTWARE.
12. Non-Fiduciary Relationship. The parties hereto expressly disclaim and disavow any partnership, joint venture or fiduciary status or relationship between them and expressly affirm that they have entered into this Agreement as independent contractors and that the same is in all respects as "arms-length" transaction.
13. Attorney's Fees. In the event that any party hereto shall be in default or breach of this Agreement, said party shall be liable to pay all reasonable attorney's fees, court costs and other related collection costs and expenses incurred by the non-defaulting or non-breaching party in prosecuting its rights hereunder.
14. Further Instruments. The parties hereto agree that they will execute any and all other documents or legal instruments that may be necessary or required to carry out and effectuate all of the provisions hereof.
15. Waiver. A waiver by any party of any provision hereof, whether in writing or by course of conduct or otherwise, shall be valid only in the instance for which it is given, and shall not be deemed a continuing waiver of said provision, nor shall it be construed as a waiver of any other provision hereof.
16. Paragraph Headings. The paragraph headings of this Agreement are inserted only for convenience and in no way define, limit or describe the scope or intent of this Agreement nor affect its terms and provisions.
17. Governing Law. This Agreement, and all matters relating hereto, including any matter or dispute arising out of the Agreement, shall be interpreted, governed, and enforced according to the laws of the State of Texas, and the parties hereto consent to the jurisdiction of any appropriate court in Harris county, in the State of Texas to resolve such disputes.
18. Amendments. This Agreement may be amended at any time upon mutual agreement of the parties hereto, which amendment(s) must be reduced to writing and signed by both parties in order to become effective.
19. Severability. In the event that any provision of this Agreement, or any operation contemplated hereunder, is found by a court of competent jurisdiction to be inconsistent with or contrary to any law, ordinance, or regulation, the latter shall be deemed to control and the Agreement shall be regarded as modified accordingly and, in any event, the remainder of this Agreement shall continue in full force and effect.
20. Entire Agreement. This Agreement constitutes and represents the entire agreement of the parties hereto with respect to the subject matter hereof, and all other prior agreements, covenants, promises and conditions, verbal or written, between these parties are incorporated herein. No party hereto has relied upon any other promise, representation or warranty, other than those contained herein, in executing this Agreement.
21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties thereto, their heirs, personal representatives, successors and assigns.
By its installation and use of the Software, the Licensee and users hereby agrees to all of the above terms and conditions of this License Agreement.