LICENSE AGREEMENT (December 13, 2012)
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. Licensor shall provide Licensee with free customer support
of the Software for a period of thirty (30) days after the date of purchase. Extended
customer support is available. Extended customer support may be purchased by the
Licensee at any time. In the absence of purchased customer support, Licensor shall
charge Licensee the sum of $100.00 per hour for customer support after the expiration
of the free customer support. 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 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
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.