TERMS AND CONDITIONS FOR USE OF RXTRAX MOBILE DELIVERY SOFTWARE

Client agrees to be bound by the following Third Party Terms for any RXTRAX, LLC services:

Client agrees to the following:

  1. USE OF THE SERVICES.

    1.1 RXTRAX RESPONSIBILITIES. RxTrax will (i) provide basic support for the Services to Client at no additional charge (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which RxTrax shall give at least 8 hours notice, or (b) any unavailability caused by circumstances beyond RxTrax's reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving RxTrax employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Services only in accordance with applicable laws and government regulations.

    1.2 RXTRAX'S PROTECTION OF CLIENT DATA. RxTrax will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. RxTrax shall not (a) modify Client Data, (b) disclose Client Data except as may be compelled by law or as expressly permitted in writing by Client, or (c) access Client Data except to provide the Services and prevent or address service or technical problems, or at Client request in connection with customer support matters.

    1.3 CLIENT RESPONSIBILITIES. Client shall (i) be responsible for Users' compliance with these terms and conditions, (ii) be responsible for the accuracy, quality and legality of Client Data and of the means by which Client acquires Client Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify RxTrax promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. Client shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

    1.4 USAGE LIMITATIONS. Services may be subject to other limitations, such as, for example, limits on disk storage space.

  2. NON MOBILE DELIVERY PROVIDERS.

    2.1 ACQUISITION OF NON-MOBILE DELIVERY PRODUCTS AND SERVICES. RxTrax or third parties may from time to time make available to Client third-party products or services. Any acquisition by Client of such products or services, and any exchange of data between Client and any other entity, is solely between Client and the applicable provider. RxTrax do not warrant or support non MOBILE DELIVERY products or services.

    2.2 INTEGRATION WITH NON-MOBILE DELIVERY PRODUCTS AND SERVICES. The Services may contain features designed to interoperate with Applications such as Google, Facebook, Twitter, or other third parties integrations. To use such features, Client may be required to obtain access to such Applications from their providers.

  3. PROPRIETARY RIGHTS.

    3.1 RESERVATION OF RIGHTS IN SERVICES. Subject to the limited rights expressly granted hereunder, RxTrax reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Client hereunder other than as expressly set forth herein.

    3.2 RESTRICTIONS. Client shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Client's own intranets or otherwise for Client's own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

    3.3 CLIENT APPLICATIONS AND CODE. If Client, a third party acting on Client's behalf, or a User creates applications or program code using the Services, Client authorizes RxTrax to host, copy, transmit, display and adapt such applications and program code, solely as necessary for RxTrax to provide the Services in accordance with this Agreement. Subject to the above, RxTrax acquires no right, title or interest from Client or Client's licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.

    3.4 CLIENT DATA. Subject to the limited rights granted by Client hereunder, RxTrax acquires no right, title or interest from Client or Client's licensors under this Agreement in or to Client's Data, including any intellectual property rights therein. Client will have access to Client's Data. If Client cancels Services or Services are terminated due to lack of payment, Client will still have access to Client's Data but will not have access to other features of the Service. If Client's subscription remains cancelled or terminated for a period of 10 consecutive years, RxTrax reserves the right to permanently delete Client's Data.

    3.5 SUGGESTIONS. RxTrax shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Users, relating to the operation of the Services.

    3.6 FEDERAL GOVERNMENT END USE PROVISIONS. RxTrax provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with RxTrax to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

  4. WARRANTIES AND DISCLAIMERS.

    4.1 RXTRAX'S WARRANTIES. RxTrax warrants that (i) RxTrax has validly entered into this agreement and have the legal power to do so, and (ii) RxTrax will not transmit Malicious Code to Client, provided it is not a breach of this subpart (v) if Client or a User uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Client's exclusive remedy shall be as provided in Section 9 (Term and Termination.

    4.2 CLIENT WARRANTIES. Client warrants that Client has validly entered into this agreement and has the legal power to do so.

    4.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  5. INDEMNIFICATION.

    5.1 INDEMNIFICATION BY RXTRAX. RxTrax shall defend Client against any claim, demand, suit, or proceeding made or brought against Client by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against Client"), and shall indemnify Client for any damages, attorney fees and costs finally awarded against Client as a result of, and for amounts paid by Client under a court-approved settlement of, a Claim Against Client; provided that Client (a) promptly give RxTrax written notice of the Claim Against Client; (b) give RxTrax sole control of the defense and settlement of the Claim Against Client (provided that RxTrax may not settle any Claim Against Client unless the settlement unconditionally releases Client of all liability); and (c) provide to RxTrax all reasonable assistance, at RxTrax's expense. In the event of a Claim Against Client, or if RxTrax reasonably believe the Services may infringe or misappropriate, RxTrax may in RxTrax's discretion and at no cost to Client (i) modify the Services so that they no longer infringe or misappropriate, without breaching RxTrax's warranties under “RxTrax's Warranties” above, or (ii) obtain a license for Client's continued use of the Services in accordance with this Agreement.

    5.2 INDEMNIFICATION BY CLIENT. Client shall defend RxTrax against any claim, demand, suit or proceeding made or brought against RxTrax by a third party alleging that Client Data, or Client's use of the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a "Claim Against RxTrax"), and shall indemnify RxTrax for any damages, attorney fees and costs finally awarded against RxTrax as a result of, or for any amounts paid by RxTrax under a court-approved settlement of, a Claim Against RxTrax; provided that RxTrax (a) promptly give Client written notice of the Claim Against RxTrax; (b) give Client sole control of the defense and settlement of the Claim Against RxTrax (provided that Client may not settle any Claim Against RxTrax unless the settlement unconditionally releases RxTrax of all liability); and (c) provide to Client all reasonable assistance, at Your expense.

    5.3 EXCLUSIVE REMEDY. This Section 6 (Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section.

  6. LIMITATION OF LIABILITY.

    6.1 LIMITATION OF LIABILITY. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $15,000.00 OR THE AMOUNT PAID BY CLIENT HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CLIENT HEREUNDER. This clause does not apply to instances as defined in Paragraph 5.2 of this agreement, nor if Client violates the primary terms of this agreement: “Client may not access the Services if Client is RxTrax's direct competitor, except with RxTrax's prior written consent. In addition, Client may not access the Services for purposes of monitoring the availability of RxTrax's Services, performance or functionality, or for any other benchmarking or competitive purposes.” In such event, damages will be determined by a court of competent jurisdiction or settled by arbitration.

    6.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

  7. TERM AND TERMINATION.

    7.1 TERM OF AGREEMENT. This Agreement commences on the date Client accept it and shall automatically renew each year unless terminated by the parties.

    7.2 TERMINATION. Either party may terminate this agreement upon thirty (30) days notice to the other.

    7.3 ACCESS Of CLIENT DATA. Client shall have access of all Client data and associated reporting functions through Client's account, even when Client is no longer subscribed to Mobile Provider services. RxTrax will hold Client data for a minimum of 10 years after Client's cancellation date.

    7.4 RETURN OF CLIENT DATA. Upon request made by Client, Client data can be complied and delivered to Client in a reasonable format (ex. CSV) via email, flash drive, shared folder or other means determined by PROVIDER for a fee of $250.

    7.5 SURVIVING PROVISIONS. Section 3 (Proprietary Rights), 4 (Warranties and Disclaimer), 5 (Indemnification), 6 (Limitation of Liability), 7.4 (Return of Client Data), and 7.6 Governing Law and Jurisdiction shall survive any termination or expiration of this Agreement.

    7.6 GOVERNING LAW, FEES, JURISDICTION. This Agreement is made subject to and shall be governed by and construed under the laws of the State of Utah, without regard to conflicts of laws principles. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Washington County, Utah, except that injunctive or other equitable relief may be sought from any U.S. court of competent jurisdiction. Client agrees and consent to the jurisdiction of the state or federal court in Washington County, Utah. The User acknowledges that the extent of damages to RxTrax in the event of the breach of any provision of this Agreement by the User would be difficult or impossible to ascertain, and that there will be available no adequate remedy at law in the event of any such breach. The User therefore agrees that in the event it breaches any provision of this Agreement, RxTrax will be entitled to seek injunctive or other equitable relief, in addition to any other relief or remedies to which it may be entitled at law or in equity. If any arbitration or litigation is commenced between or among parties to this Agreement or their personal representatives concerning any provisions of this Agreement, or the rights and duties of any person in relation thereto, the court or arbitrator, as the case may be, may award to the party or parties prevailing in such arbitration or litigation, in addition to such other relief as may be granted, a reasonable sum for their attorneys' fees.

  8. DEFINITIONS.

    "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

    "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

    "Non-Mobile Delivery Provider Applications or Non Mobile Provider" means online applications and offline software products that are provided by entities or individuals other than RxTrax and are clearly identified as such, and that interoperate with the RxTrax powered system.

    "Purchased Services" means Services that Client or Client's Affiliates purchase from Mobile Provider.

    "Services" means the products and services that are available from RxTrax or Mobile Provider and made available by RxTrax online. “Services” exclude Non-Mobile Provider.

    "Users" means individuals who are authorized by Client to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by Client (or by RxTrax at Client's request). Users may include but are not limited to Client's employees, consultants, contractors and agents, and third parties with which Client transact business.

    "Client Data" means all electronic data or information submitted by Client to the Services.