TERMS and CONDITIONS
Applications license agreement

This Applications License Agreement, together with these Terms and Conditions and the fully executed order form or enrollment form (“Order Form”) (collectively, the “Agreement”), is made and is effective as of the date indicated on the Order Form (the “Effective Date”), by and between Inmar Rx Solutions, Inc., a Texas corporation with offices at 1 W. 4th St., Suite 500, Winston-Salem, North Carolina 27101 (“Inmar”), and the entity signing the Order Form (“Client”). 

1. Services.  

a. Order Form. Inmar will provide the services to Client that are selected on the Order Form (“Order Form”) to which these terms and conditions (the “Terms and Conditions”) are attached, as more particularly described in the applicable Services Exhibits attached to or indicated on the Order Form (the “Services”) for Client’s location(s), a list of which Client provided in the applicable Order Form or in writing to Inmar (“Location(s)”), email to suffice, that shall be considered to be attached hereto as the Location Exhibit and incorporated herein by reference.

b. License.  All software, programs, coding, digital solutions, applications or platforms provided by Inmar to Client hereunder shall be referred to as “Application(s).”  Employees or agents of a Client credentialed to use such Applications shall be referred to as “Users.” For all Applications provided by Inmar to Client, subject to the terms of this Agreement and during the applicable Term set forth on the Order Form, Inmar grants to each Client a limited, worldwide, non-exclusive, non-transferable license, without resale or sublicense rights to (a) install or access (at Inmar’s discretion) a single instance of each Application for one (1) platform instance in Client’s environment, and/or permit credentialed Users to use, access and display the Application in connection with the intended purpose of the Application unless otherwise mutually agreed upon in writing by the parties, and (b) for the applicable Term, use and make a reasonable number of copies (for the purposes of utilizing the Application only) of any descriptions, instructions, or other documentation made available in connection with the Application, if any (the “Documentation”).   If no Term is set forth in the Order Form, this license shall be for a period of one (1) year from the date of delivery or final re-delivery of the Application, after which time Inmar may terminate Client’s access to the Application. 

c. Restrictions.  Client may not, nor allow any third party to: 1) copy or reproduce the Application or Documentation (except as set forth herein); 2) modify, translate or otherwise create derivative works of the Application or Documentation; 3) dissemble, decompile or reverse engineer the object code or source code of the Application or the Documentation or otherwise attempt to discover the source code of or trade secrets embodied in the Application; 4) use automated or software bot technology or other artificial intelligence programs or applications to access the Applications or any application programming interfaces provided by Inmar; 5) port or grant unauthorized third parties the right to use, frame or link to the Application or Documentation; 6) distribute, transfer, sublicense or otherwise make available to any third party the Application, Documentation or any benchmark testing or results relating to the Application or Documentation (or any portion thereof); 7) embed or incorporate in any manner the Application or Documentation into any other product, service or application of Client or any third parties; 8) use or transmit the Application or Documentation in violation of any applicable law, rule or regulation, including import/export laws; 9) use or copy the Application or Documentation or any portion thereof to directly or indirectly develop, promote, distribute, sell or support any product or service similar to or competitive with the Application or Documentation; 10) use the Application to store or distribute any information, material or data that is harassing, threatening, infringing, libelous, unlawful, obscene or which violates the privacy or intellectual property rights of any third party; 11) remove, obscure or alter any copyright notices or any name, trademark, service mark, hyperlink or other designation set or provided by Inmar; or 12) export the Application. Client shall not permit any affiliate, subsidiary or other third party to perform any of the foregoing actions.  Client shall immediately notify Inmar, in writing, if it knows or reasonably suspects that any of the foregoing actions have occurred.

2. Term.  The initial term of this Agreement shall commence on the Effective Date and shall continue for the initial term indicated on the Order Form (the “Initial Term”).  At the end of the Initial Term, unless otherwise indicated on the Order Form, this Agreement shall be renewed automatically for one (1) year periods (each one (1) year period shall be defined as a “Renewal Term”) unless terminated in accordance with Section 11 herein.  The Initial Term and all Renewal Terms, if any, are collectively referred to as the “Term” of this Agreement.

3. Fees.  

a. As compensation for the Services, Client shall pay to Inmar those fees as set forth on the Order Form (the “Fees”).  All amounts due hereunder are net amounts, and Client agrees that it will be responsible for all sales, use, or services taxes of any kind, if applicable, with the exception of taxes due on Inmar’s income.

b. Inmar shall submit to Client itemized statements detailing the Fees accrued by Client during the current billing cycle.  Payment in full of all Fees listed on the invoice shall be received from Client by Inmar within thirty (30) days of the invoice date via check, wire transfer or ACH draft. The Fees payable hereunder shall not be reduced by any deduction or other offsets.  Funds must be presented in U.S. currency.  All invoices not paid by Client by the due date are subject to a past due charge of 1.5% per month, or the maximum rate permitted by law.  In the event Client fails to make payments within thirty (30) days of the date of the invoice, Inmar may, in its sole discretion, discontinue the performance of all Services for Client until such time as all accrued and unpaid Fees are paid in full.  In the event that any Inmar invoice is collected by or through an attorney or collections agent, Inmar shall be entitled to recover reasonable attorneys’ fees and the cost of collection from Client.

c. Client may elect to enroll in Inmar’s optional Credit Assurance Plus (“CAP”) program.  If Client enrolls in the CAP program, payment by Client will be subtracted from the manufacturer(s) credits received pursuant to a separately executed returns processing agreement between the parties; provided, however, that if Inmar anticipates that Client will not have enough credit to satisfy payment or Inmar is otherwise unable to deduct credits, Client shall pay Inmar the Fees pursuant to this Agreement.  The CAP program is subject to an administrative fee. 

4. Fee Adjustment.  Fees will be impacted should the actual volume and service requirements differ significantly from the volume assumptions and baseline services described herein.  Services performed by Inmar that are not described herein shall be invoiced to Client at a mutually agreed upon fee.  Unless otherwise indicated on the Order Form, the Fees charged for Services in this Agreement shall remain in effect for one (1) year from the Effective Date, after which Inmar shall have the right to adjust its Fees under this Agreement once annually, such adjustment not to exceed five percent (5%) annually. 

5. Confidentiality.  In connection with this Agreement, each party (in such capacity, the “Disclosing Party”) has disclosed or may disclose to the other party (in such capacity, the “Receiving Party”) certain of its trade secrets, know-how and other Confidential Information (as defined below). The Receiving Party agrees not to use any of the Disclosing Party’s Confidential Information for any purpose except to perform its obligations under this Agreement.  The Receiving Party further agrees (i) not to disclose any of the Disclosing Party’s Confidential Information to any third party without the prior written approval of an authorized representative of the Disclosing Party; (ii) not to use any of the Disclosing Party’s Confidential Information for its own or a third party’s benefit; and (iii) to undertake reasonable precautions to safeguard and protect the confidentiality of the Confidential Information. “Confidential Information” means any information disclosed by the Disclosing Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including without limitation all financial and business information, computer software, processes, pricing policies, product plans, designs, market research and analysis, costs, customer and supplier lists, strategies, forecasts, know-how, data, methodologies, concepts, tools, trade secrets, inventions and ideas, and all other information disclosed by the Disclosing Party pursuant to this Agreement.  Confidential Information shall not, however, include any information which Receiving Party can establish (i) at the time of disclosure or thereafter is in the public domain or becomes generally known to the public through no fault of the Receiving Party; (ii) was available to the Receiving Party on a nonconfidential basis from a source other than the Disclosing Party, provided that such source was not known by the Receiving Party to be bound by a confidentiality agreement with the Disclosing Party; (iii) is known to the Receiving Party (as evidenced by its written records) prior to receipt thereof from the Disclosing Party; or (iv) is required to be disclosed by a court of competent jurisdiction or by law, provided that the Disclosing Party is given prior written notice of such disclosure (to the extent legally permitted).  The obligations of nondisclosure and confidentiality undertaken by each party under this Agreement shall continue for the Term of this Agreement and for a period of four (4) years following the termination or expiration of this Agreement, except that Confidential Information identified as a trade secret shall be subject to and protected by such obligations of nondisclosure and confidentiality in perpetuity.

6. Intellectual Property and Data.

a. Intellectual Property.  Each party shall own and continue to own all rights it may have in intellectual property developed, invented, gathered, or created by it before or during the Term of this Agreement.  Except for the license grant set forth in the immediately succeeding paragraph, this Agreement shall not be construed to grant to either party any right, title, or interest in any intellectual property rights owned by the other party.  Without limiting the foregoing, all intellectual property rights, title, and interest in the methodology, technology, and know-how that Inmar uses to perform the Services under this Agreement, including all enhancements and improvements thereto, and including the Applications, Software, and Documentation, are and shall remain the exclusive property of Inmar.
b. Data Usage.  Data collected or generated by Inmar in the performance of the Services and held by Inmar in a form that is identifiable to Client shall be the property of Client (“Client Data”).  Inmar shall have a perpetual, royalty-free, non-exclusive license to use Client Data to perform the Services, and to aggregate, or otherwise manipulate, or create derivative works from, Client Data in a form that is not identifiable to Client. Client agrees that it will not disclose or transmit any data generated by Inmar in the performance of the Services to any third party without the prior written consent of Inmar.  

7. Warranty; Disclaimer of Other Warranties.  

a. Inmar warrants that the Services will be performed in a professional, timely and workmanlike manner, in accordance with all applicable provisions of this Agreement, all applicable published specifications, and applicable law.

b. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS SECTION, ALL LICENSED SOFTWARE, APPLICATIONS, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY INMAR ARE PROVIDED “AS IS.” INMAR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, INMAR MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE, APPLICATIONS, OR DOCUMENTATION, OR ANY OTHER LICENSOR OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET CLIENT’S OR ANY OTHER PERSON’S OR ENTITIES’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE SERVICES PROVIDED BY INMAR ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.  IN NO EVENT WILL INMAR BE LIABLE TO CLIENT FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSSES, OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), OR LOST TIME, SAVINGS, PROPERTY, PROFITS, OR GOODWILL, WHICH MAY ARISE IN CONNECTION WITH THE SERVICES PROVIDED BY INMAR, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EVEN IF INMAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, OR COSTS.

8. Limitation.  Unless otherwise limited herein, the liability of Inmar to Client under this Agreement or otherwise, regardless of the form of claim or action, will not exceed the amounts actually paid by Client to Inmar for Services provided by Inmar under this Agreement in the prior twelve (12) month period.

9. Indemnification.  Except as otherwise limited herein, each party (the “Indemnitor”) agrees to defend, indemnify, and hold harmless the other party (the “Indemnitee”) and its officers, directors, and employees from and against any and all damages, losses, costs and expenses (including reasonable attorneys’ fees), judgments, and liabilities (collectively, “Expenses”) that (i) are made against or incurred by the Indemnitee in connection with a third party claim and (ii) arise out of or relate to acts or omissions of the Indemnitor in the performance of this Agreement that constitute gross negligence or willful misconduct on the part of the Indemnitor, so long as such Expenses are not primarily caused by the Indemnitee, its officers, directors, or employees.  The indemnification set forth in this Section 9 is conditioned upon (a) the Indemnitee providing the Indemnitor written notice of any claim or cause of action upon which the Indemnitee intends to base a claim of indemnification hereunder, (b) the Indemnitee providing reasonable assistance and cooperation to enable the Indemnitor to defend the action or claim hereunder, and (c) the Indemnitee refraining from making prejudicial statements associated with such claim without the prior written consent of the Indemnitor.

10. Default.
a. Any material breach of the terms of this Agreement that is not cured within thirty (30) days of receipt of written notice from the non-breaching party will constitute default of the Agreement by the breaching party.

b. Failure of Client to make any payment due to Inmar shall constitute default by Client if such nonpayment continues for a period of ten (10) days after receipt of written notice from Inmar.

c. Insolvency, receivership, bankruptcy, or any similar proceeding initiated against either party will constitute default by that party.

11. Termination.
a. Either party may terminate this Agreement upon written notice in the event of default by the other party if such default continues beyond the period for cure provided in Section 10 hereof.
b. This Agreement may be terminated upon the expiration of the Initial Term or any Renewal Term by either party hereto provided that written notice is received by the non-terminating party at least ninety (90) days prior to the expiration of the Initial Term or any Renewal Term.
c. The termination of this Agreement will not affect any payment or performance obligation accruing or arising prior to such termination. In the event of termination of this Agreement, no refund shall be available or due with respect to amounts properly billed to and paid by Client prior to such termination. Upon any termination of this Agreement, without prejudice to any other rights or remedies which the parties may have, (a) all rights, licenses and obligations required hereunder shall immediately cease (except for any limitations on license as set forth herein), provided that the representations and warranties under this Agreement, which, by their terms and context show the parties intended them to survive the termination of this Agreement for any reason, including but not limited to, provisions governing confidentiality, ownership, indemnification and liability, shall survive any expiration or termination of this Agreement; (b) Client will promptly delete and destroy all instances of any software or Documentation in its possession or control (if any), and upon request by Inmar shall certify in writing such destruction; (c) Client shall pay to Inmar any outstanding Fees that have accrued prior to the date of termination.  

12. Force Majeure.  Inmar shall not be liable to Client for any delay or failure of performance of this Agreement if such delay or failure is caused by weather conditions, earthquake, fire, flood, externally caused transmission interferences, satellite failure, war, riot, acts of terrorism, civil disturbance, or any cause beyond the control of Inmar (each an “Event of Force Majeure”).  If a delay or failure of performance by Inmar is caused by an Event of Force Majeure, Inmar shall notify Client and shall be released without any liability from its performance under this Agreement to the extent and for the period of time that such performance is prevented by the Event of Force Majeure.

13. Notice.  All notices, requests, demands, or other communications required or permitted herein shall be in writing and shall be deemed to have been duly given if personally delivered or if mailed by United States Postal Service certified or registered mail or by overnight courier to Client at the address set forth in the Agreement.  Such notice to Inmar shall be to Inmar Rx Solutions, Inc., 1 W. 4th St., Suite 500, Winston-Salem, North Carolina 27101, Attn: President, with a copy to General Counsel.

14. Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without reference to the conflict of law rules of such state.

15. Reduction of Statute of Limitation.  No action arising out of this Agreement may be brought by either party more than one (1) year after the date on which the cause of action has accrued.

16. Entire Agreement.  This Agreement, together with the Exhibits, Schedules, Order Forms and Statements of Work hereto, sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, written or oral, between the parties with respect to the subject matter hereof.

17. Modification.  This Agreement, or any part thereof, may not be modified except by an agreement in writing executed by the parties.

18. Relationship.  Inmar shall act as an independent contractor in the performance of Services provided for herein and nothing herein shall be construed to create the relationship of principal and agent, master and servant, or a partnership or joint venture between Inmar and Client.

19. Assignment/Binding Effect.  This Agreement may not be assigned or transferred without the prior written consent of the parties and shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.  Notwithstanding the foregoing, Inmar may engage one or more of its affiliates to perform all or part of the Services hereunder.

20. Waiver.  Failure of either party to enforce a specific provision of this Agreement shall not constitute waiver of such provision or of any other provision of this Agreement.  No waiver of any of the provisions of this Agreement shall be deemed to be or shall constitute a waiver of any other provision of this Agreement, whether or not similar, nor shall any waiver by either party of any default hereunder constitute a waiver of subsequent defaults of the same or different kind.  No waiver of any provision of this Agreement shall be binding on the parties hereto unless it is executed in writing by the party making the waiver.

21. Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law.  The determination by any court of competent jurisdiction that one or more of the provisions of this Agreement are unenforceable shall not invalidate this Agreement, and the decision of such court shall be given effect so as to limit to the extent possible the provisions of this Agreement that are deemed unenforceable.  To the extent such determination has a material impact upon the economic expectations of the parties hereto, the parties agree to make appropriate modifications to this Agreement to take such impact into account.

22. Counterparts.  This Agreement may be signed in counterparts and delivered by facsimile, e-Signature (defined below), or by scanned PDF image delivered via electronic mail, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Pursuant to this Agreement, "e-Signatures" shall mean a signature that consists of one or more letters, characters, numbers or other symbols in digital form incorporated in, attached to or associated with the electronic document, that; (i) is unique to the person making the signature; (ii) the technology or process used to make the signature is under the sole control of the person making the signature; (iii) the technology or process can be used to identify the person using the technology or process; and (iv) the electronic signature can be linked with an electronic document in such a way that it can be used to determine whether the electronic document has been changed since the electronic signature was incorporated in, attached to or associated with the electronic document.