Emporos Point of Sale Terms and Conditions

Client agrees to be bound by the following additional [Third Party Terms] of Emporos Systems Corporation (“ESC”) applicable to ESC products (“ESC Products”) comprised by this Agreement. In the event that any of these Third Party Terms of ESC conflict with corresponding terms set forth in this Agreement, these Third Party Terms of ESC shall govern.

Third Party Beneficiary. Client agrees that ESC is an intended third-party beneficiary to this Agreement between Client and McKesson to the extent it relates to Client’s use of ESC Products.

Limitation on the Use of ESC Product(s). Client shall not: (a) sell, transfer, publish, disclose, display, sub-license, assign or otherwise make available the ESC Products or any copies thereof to any third party; (b) reverse assemble, reverse compile, reverse engineer or otherwise translate the ESC Products; (c) use the ESC Products in any way for creating or designing any derivative works, including, without limitation, any competitive software package; (d) modify the ESC Products beyond the configuration and personalization allowed; (e) make any copies of the ESC Products or any part thereof or any documentation related thereto; (f) remove any copyright, legal, restrictive or other proprietary rights notice contained on or included in the ESC Products or any part thereof; (g) use the ESC Products for any purpose other than Client’s own internal business purposes; or (h) install, run or use the ESC Products at locations other than Client locations or on more computers than are permitted under this Agreement. Client agrees to secure and protect the ESC Products and each part thereof in a manner consistent with the maintenance of ESC’s rights hereunder, and to take all necessary action to ensure that its employees, officers, directors, agents and consultants comply with the terms of this Agreement.

Term of License. The term of the license to ESC Products under this Agreement shall commence on the Effective Date and continue for a period of three (3) years thereafter. Thereafter, the license to ESC Products shall automatically renew for successive one (1) year terms unless either party delivers written notice of termination in the manner provided in this Agreement.

Certain Responsibilities of Client.

(a) Use of the ESC Products. Client shall be exclusively responsible for the supervision, management and control of its use of the ESC Products, including, but not limited to: (a) insuring proper machine configuration, program installation, audit controls, and operating methods; (b) establishing adequate backup plans, based on alternate procedures in the event of a ESC Product malfunction; (c) implementing sufficient procedures and checkpoints to satisfy its requirements for security and accuracy of input and output as well as restart and recovery in the event of a malfunction; and (d) operating any third-party hardware or software continually in a suitable operating environment as designated by ESC or the manufacturer of such third-party hardware or software. It is understood that it will be Client’s responsibility to enter into Client’s system the data necessary for the operation of ESC Products and to ensure the accuracy of said data.

(b) Compliance with Law and Regulations. Client is solely responsible for complying with all laws, rules and regulations related to the operation, use and monitoring of the ESC Products, including, without limitation, the Payment Card Industry (PCI) Data Security Standard, the Healthcare Information Portability and Accountability Act (HIPAA) of 1996, the rules and regulations of the Drug Enforcement Agency (DEA), and the rules and regulations of all applicable taxing authorities. All operating supplies for use with any third-party hardware, software or services are to be provided by Client at Client’s expense and shall be the responsibility of Client.

(c) Medical Expense Items. Client shall be solely responsible for ensuring that medical expense items that are paid by its customers using a Flexible Spending Account, Health Reimbursement Arrangement or Health Savings Account are eligible medical expense items. In no event shall ESC be liable for any incorrect or missing items on any eligible medical expense items list provided by ESC to Client from time-to- time or for any items added by Client to any medical expense items list provided by ESC.

(d) Network Security. Client acknowledges and agrees that it is solely responsible for ensuring the security of its network. Client further acknowledges and agrees that it is solely responsible for implementing and Client agrees that it will implement an appropriate firewall to protect its point-of-sale environment prior to installation of the ESC Products which firewall shall block all open data traffic in both directions from the point-of-sale environment and only allow such traffic as required to operate the ESC Products. Client shall be responsible for maintaining a copy of all its data.

ESC Services

(a) Implementation Services. ESC shall provide the Implementation Services identified and described on the Implementation Services Schedule.

(b) Testing and Acceptance. ESC will facilitate Testing and Acceptance as identified and described on the Testing and Acceptance Schedule.

(c) Support Services. ESC shall provide the Support Services identified and described on the Support Services Schedule.

Limited Warranty and Limitation of Liability.

(a) Limited Warranty. ESC warrants that the ESC Products will conform in all material respects to ESC’s published specifications for the ESC Products, and will be substantially free of any defects which would substantially affect the ESC Products’ performance. If at any time during the term of this Agreement, the Client believes that the ESC Products do not conform to the warranty contained herein, then the Client shall promptly notify ESC in writing, which notice shall set forth in reasonable detail the reasons the Client believes the ESC Products do not conform to the warranty provided herein. If the problem described in such notice constitutes a breach of the warranty provided herein, then ESC’s sole responsibly shall be to either, at its sole option, correct the problem or replace that portion of the ESC Products that is causing the problem. Any modifications, other than ESC authorized enhancements and modifications, made to the ESC Products by Client shall result in the immediate termination of the limited warranty provided in this paragraph. Correction for difficulties or defects in the ESC Products traceable to Client’s errors or systems changes, or caused by any third-party hardware or software, shall not be the responsibility of ESC and shall be billed to and paid by Client at ESC’s then current time and material charges. THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

(b) Third Party Hardware, Software and Services Warrant Disclaimer. ESC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY THIRD-PARTY HARDWARE, SOFTWARE AND SERVICES PROCURED BY CLIENT FOR USE IN CONNECTION WITH THE ESC PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Client acknowledges and agrees that the exclusive warranty for the functioning or performance of such third party items is the limited warranty, if any, of the manufacturer or provider thereof. ESC shall not be liable for the failure of the ESC Products to perform if such failure is caused by malfunctions in such third party items.

(c) Limitation of Liability. CLIENT AGREES THAT ESC’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF LICENSE FEES FOR THE ESC PRODUCTS ACTUALLY PAID BY CLIENT UNDER THIS AGREEMENT DURING THE 12- MONTH PERIOD IMMEDIATELY PRECEDING THE CLIENT'S CLAIM.

(d) Damage Exclusion. ESC SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT FOR ANY OF THE FOLLOWING TYPES OF DAMAGES, EVEN IF ESC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES: (i) ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES; (ii) LOST PROFITS; (iii) LOSS OF DATA; (iv) LOSSES OR DAMAGES RESULTING FROM VIRUSES, WORMS, SPYWARE, TROJANS OR MALWARE EXISTING ON OR AFFECTING CLIENT’S NETWORK; (v) LOSSES OR DAMAGES RESULTING FROM INTERNET DOWNTIME; (vi) LOSSES OR DAMAGES ARISING FROM EVENTS OUTSIDE OF ESC’S CONTROL; OR (vii) LOSSES OR DAMAGES RESULTING FROM CLIENT’S INABILITY TO PROCESS CREDIT CARD, DEBIT CARD OR OTHER TRANSACTIONS. CLIENT SHALL BE SOLELY RESPONSIBLE FOR ENSURING THAT THE ESC PRODUCTS SATISFY CLIENT’S LEGAL AND REGULATORY NEEDS, REQUIREMENTS AND OBLIGATIONS. AS SUCH, ESC SHALL HAVE NO LIABILITY TO CLIENT IF THE ESC PRODUCTS OR ANY OF THEIR FUNCTIONS OR FEATURES FAIL TO SATISFY CLIENT’S LEGAL AND REGULATORY NEEDS, REQUIREMENTS OR OBLIGATIONS.

Protection of Cardholder Data.

(a) PCI Compliance. For purposes of this paragraph, “Personal Data” means any credit, debit and other personally identifiable information of any person or entity. Client shall at all times comply, and shall ensure that all of its point-of-sale hardware and software comply, with the VISA Cardholder Information Security Program (“CISP”), Payment Card Industry Data Security Standard (“PCI DSS”), and all laws and regulations governing the protection and security of Personal Data, all as the same may be amended or enacted from time to time. Client shall be responsible for the security of all Personal Data in Client’s possession or control. In order to provide such security, Client shall maintain appropriate administrative, physical and technical safeguards reasonably designed to protect the security of all Personal Data. In the event of a breach to the security of any Personal Data in Client’s possession or control or due to Client’s failure to maintain the security safeguards referred to above (a “Security Breach”), Client shall inform ESC in writing as soon as practicable after the Security Breach. ESC shall have the right to terminate this Agreement in the event of a Security Breach; provided, however, that Client shall first be given a reasonable period of time to cure. Client shall indemnify, defend, and hold harmless ESC from and against any and all claims, damages and expenses, including reasonable attorneys’ fees, arising out of or resulting from a Security Breach.

(b) (b) ESC represents and warrants that the ESC Products used to facilitate the processing of credit card transactions are compliant with standards established by the PCI Security Standards Council (PCI). ESC further represents and warrants that any third-party hardware or software that are used with the ESC Products are PCI approved payment applications or devices.

Miscellaneous.

(a) Dispute Escalation and Arbitration. Any claims, disputes or controversies arising out of or relating to the terms of this Agreement applicable solely to ESC Products or the breach thereof, and not involving McKesson (rather only Client and ESC), shall be resolved by arbitration in accordance with the then prevailing Commercial Arbitration Rules of the American Arbitration Association (the “Rules”); provided, however, that this paragraph (a) and paragraph (c) below shall supersede and control over any provision of the Rules. Any arbitration proceeding under this paragraph (a) shall take place in Charlotte, North Carolina, unless Client and ESC mutually agree on a different location. Unless otherwise agreed, any arbitration proceedings shall be conducted by a single arbitrator selected by Client and ESC in accordance with the Rules. The arbitrator shall have no less than ten (10) years of experience in the field of information technology or electronic credit card transactions. The arbitrator shall not have authority to award punitive damages in any case, but shall have the authority to award attorneys’ fees, costs and expenses of the arbitration to the prevailing party, in the arbitrator’s discretion. The arbitration award will be binding on each of Client and ESC and judgment on any award may be entered in any court having jurisdiction thereof.

Client also acknowledges that mediation or other alternative methods of dispute resolution may be mutually advantageous and appropriate prior to arbitration. Client agrees that, following notification in writing by one party of a dispute comprised by this paragraph (a), the [President or Chief Executive] of Client agrees to engage in good faith discussions with the [President or Chief Executive of ESC] to resolve any dispute, as well as to consider in good faith the possibility of employing such other alternative methods of dispute resolution in a particular situation prior to initiating arbitration.

Notwithstanding the foregoing provisions of this paragraph (a), without waiving any remedy under this Agreement, either Client or ESC may seek from any court having jurisdiction any interim, equitable and/or provisional relief that it deems necessary to protect its rights or property pending the determination of any controversy in arbitration under this paragraph (a).

(b) Attorney’s Fees and Costs. In any action, including arbitration, brought under paragraph (a), the prevailing party shall be entitled to reimbursement from the non-prevailing party of reasonable attorneys’ fees and costs incurred in the prosecution of said action or arbitration, including pre-litigation or arbitration activities.

(c) Governing Law. Any disputes arising under this Agreement and comprised by paragraph (a) above shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflicts of laws provisions.

(d) No Waiver; Remedies Cumulative. No failure or delay on the part of either Client or ESC in the exercise of any right hereunder will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any provision of this Agreement applicable to the ESC Products, nor will any single or partial exercise of any such right preclude other or further exercise of any other right. All rights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.

(e) Non-Solicitation. Client recognizes that ESC’s employees and independent contractors are critical to providing the ESC Products contemplated under this Agreement. For the term of this Agreement and for twelve (12) months after its termination, Client agrees that it and any parent company, subsidiary, partner, limited partner, joint venture, or any entity related in any manner to the Client by common ownership, will not employ, hire, or compensate in any manner or capacity, including as an employee or independent contractor, any employee or independent contractor of ESC.

(f) Notices. All notices made under these Third Party Terms of ESC shall be in writing and shall be deemed to have been duly given when delivered by express or overnight mail via a nationally recognized air courier (delivery charges prepaid) or by registered or certified mail (postage prepaid, return receipt requested) to Client or ESC (as applicable) at such address as either Client or ESC may have previously furnished to the other in writing in the manner set forth above. Any notice delivered in person will be deemed effective upon delivery provided the sender has proof of delivery by a signed receipt which has been executed by an employee of the recipient. Any other method of delivery will be considered to be received on the date that it is actually received by the recipient as evidenced by signed receipt. Notwithstanding the foregoing, Client shall provide ESC with an active email account where Client may be contacted, and Client understands and agrees that communication by ESC to this email account will be deemed to have been received, read and understood by Client. All notices made under these Third Party Terms of ESC shall be in writing and shall be deemed to have been duly given when delivered by express or overnight mail via a nationally recognized air courier (delivery charges prepaid) or by registered or certified mail (postage prepaid, return receipt requested) to Client or ESC (as applicable) at such address as either Client or ESC may have previously furnished to the other in writing in the manner set forth above. Any notice delivered in person will be deemed effective upon delivery provided the sender has proof of delivery by a signed receipt which has been executed by an employee of the recipient. Any other method of delivery will be considered to be received on the date that it is actually received by the recipient as evidenced by signed receipt. Notwithstanding the foregoing, Client shall provide ESC with an active email account where Client may be contacted, and Client understands and agrees that communication by ESC to this email account will be deemed to have been received, read and understood by Client.

IMPLEMENTATION SERVICES SCHEDULE

ESC Implementation Services provides planning, installation, and retail pharmacy consulting services. The dedicated Implementation Team will take full ownership of Client’s MerchantSoft Implementation including:

• Onsite Implementation Planning Workshop
• Documenting Business Requirements in a Technical Design Document (Notebook)
• Advising on Retail Pharmacy Operations Best Practices
• Installing and configuring MerchantSoft for User Acceptance Testing (UAT)
• Assisting with data conversion and imports from legacy system
• Participating in scheduled status calls and remote follow-up meetings
• Coordinating and executing production cutovers tasks
• Personalized production training and end user documentation
• On-site pharmacy support during go-live

1. Implementation Planning Workshop

The Implementation Planning Workshop (IPW) is an onsite meeting where business requirements are identified and the production cutover plan is developed.

ESC completes a production demonstration designed to introduce the MerchantSoft product suite to the Client’s project team and solicit feedback. During the demo, Clients see how the system functions and the Implementation Specialist identifies key points of integration where MerchantSoft helps satisfy the Client’s business requirements.

Implementation Specialists work with the Client’s IT team to finalize the system architecture and to identify the key cutover tasks and milestones.

The outcome of the IPW is the Client’s Technical Design Document, which provides a single point of reference for the build and configuration of the MerchantSoft system.

2. Retail Pharmacy Operations

Implementation provides consulting services covering a wide variety of retail pharmacy operations including:

• PCI Compliance
• HITECH Act Compliance
• Pharmacy Management System Integration
• Daily Operations
• Inventory Management
• Accounts Receivable & Payroll Deduction
• General Ledger

3. System Configuration

Implementation Specialists take ownership of the configuration of the MerchantSoft system including server installation, deploying reports, configuring Point of Sale software and hardware, as well as customizing the MerchantSoft modules to address Client’s unique needs.

4. Implementation Support

During User Acceptance Testing, our Implementation Specialists serve Clients by acting as a dedicated technical support contact, answering all questions related to the MerchantSoft products and retail pharmacy operations.

Implementation Specialists lead a technical dress rehearsal to ensure all production components are configured and functioning according to each Client’s requirements before coordinating and executing the production cutover tasks

5. Onsite Go-Live Support

During go-live, the Implementation Specialist is onsite to lead the MerchantSoft product launch. Implementation and Training Specialists provide elbow-to-elbow support for two full days, ensuring end users understand how to get the most out of the integration between MerchantSoft and their Pharmacy Management System.

On closing, the Implementation Specialist works directly with the Project Manager, Account Manager, and Director of Customer Care to transition accounts from Implementation Team to the Customer Care Team.

6. Dedicated Client Expert

Post-launch, the Implementation Specialist serves as a dedicated subject matter expert on the new Client’s account. Specialists work with Account Managers and Customer Care to advise on issue escalations, operational improvements, and product upgrades.

7. Training and Education

ESC follows a phased approach for MerchantSoft training to get Clients up-to-speed quickly and give them the confidence to complete transactions at Point of Sale efficiently. Our trainers work with Project Managers, Implementation, and the Pharmacy Operations Management teams to customize training curriculums to focus on each Client’s unique needs.

All Clients have access to an online knowledgebase where they can view detailed user guides and access educational videos.

Our Training Specialists conduct bi-monthly webinars focusing on a variety of MerchantSoft topics.

TESTING AND ACCEPTANCE SCHEDULE

Testing and Acceptance of the Products shall be performed by Client to validate that the ESC Products accurately and successfully perform in conformance with the documentation and any additional functional criteria agreed to by the parties.

1. Acceptance Lab Testing.

1. After ESC's notification to the Client that the hardware and ESC Products listed on Exhibit 1 of these Third Party Terms have been installed in the Client’s Lab Environment (“Lab Environment” means the computer system operation environment that fully emulates the computer system operation environment used in Client’s Production Environment.) and the Client's personnel and staff have been trained to permit them to begin acceptance testing (the “Installation Notice”), the Client shall commence performing the acceptance tests pursuant to the procedures, criteria, and descriptions agreed to by the parties in writing (the “Acceptance Criteria”). The Client shall complete all acceptance testing within ten (10) business days after receipt of the Installation Notice. Such acceptance testing shall be conducted in the Client's lab environment in order to determine whether the hardware and ESC Products listed on Exhibit 1 of these Third Party Terms perform in all respects according to the Acceptance Criteria. ESC agrees to deliver the hardware and ESC Products to the Client’s place of business at the site designated by the Client in writing.
2. The parties agree that the hardware and ESC Products listed on Exhibit 1 must be fully tested as set forth in this Section before being deployed in Client’s Production Environment (“Production Environment” means the computer system environment and processes used in the Client’s day-to-day business operations to conduct store transactions).
3. If and when the acceptance tests establish that the hardware and ESC Products listed on Exhibit 1 are performing in all respects according to the Acceptance Criteria, the Client shall sign and date the acceptance certificate provided by ESC (the “Acceptance Date”). The parties acknowledge and agree that acceptance testing shall only occur in the Client’s lab environment one time and that acceptance testing will not be performed each time the Client desires to implement the ESC Products at a different location.
4. If the Client reasonably determines that the hardware and ESC Products listed on Exhibit 1 do not perform in all respects according to the Acceptance Criteria as set forth in a., the Client shall inform ESC in writing (including by email) (hereinafter, "first notice of failure") and shall specify in reasonable detail in which respects such hardware and ESC Products failed to pass the acceptance test. ESC shall make such necessary corrections and modifications in the hardware listed on Exhibit 1 or the ESC Products as will permit such hardware or ESC Products to be ready for retesting. ESC shall notify the Client in writing when such corrections and modifications have been made, and the Client shall commence retesting such hardware and ESC Products and complete such retesting within ten (10) business days after receiving ESC’s written notice that the ESC Products and hardware are ready for retesting. If, after the foregoing acceptance testing procedure has been done three (3) times (i.e., the Client tests and retests, and ESC makes corrections, three (3) times each), the hardware or ESC Products still fails to pass the acceptance test, either party shall have the right, at its option, to terminate these Third Party Terms by giving written notice of such termination to the other party. Upon such termination of these Third Party Terms after the failure of the acceptance tests, the Client shall promptly return the hardware and ESC Products and associated documentation and materials to ESC and ESC shall, as the Client’s sole and exclusive remedy for failure of the hardware or ESC Products to pass the acceptance tests, reimburse Client within thirty (30) days of such termination for any software fees paid to ESC for the ESC Products and the purchase price paid for the hardware listed on Exhibit 1.

SUPPORT SERVICES SCHEDULE

1. First Tier Support

The Client assumes the obligation for First Tier Support for the ESC Software. “First Tier Support” means all direct interaction with Client’s employees regarding (i) the use and operation of the ESC Software, (ii) the intake of all employee inquiries regarding suspected defects in the ESC Software and (iii) the delivery to Client employees of error corrections and workarounds. In addition, First Tier Support includes the resolution of suspected Defects reported by Client employees that do not require access to the ESC Software source code or database schema to resolve and the resolution of Client employee questions regarding the use and operation of the ESC Software, including, without limitation, (i) reviewing all reported Defects to determine if such error is the result of software or equipment other than the ESC Software and (ii) if the error continues to persist, providing ESC a written notification via e-mail or Web support of the error in the ESC Software along with the product version, defect level, steps taken to isolate and/or resolve the defect.

2. Second Tier Support

The ESC Customer Care team will provide Second Tier Support to Client for the ESC Software which will cover technical support issues that are of a level that cannot be answered by a Customer support person familiar with the technical documentation. “Second Tier Support” obligations are set forth in detail in Exhibit B.

The ESC Customer Care team can be accessed via multiple channels to include, Customer Portal website, Toll Free line, email. A Service Order is created within the CRM and communicated to the Client via either the portal or email. If additional information is required, contact to tier one contact is done via either email or phone. When the issue is resolved an email is sent to the Client detailing the issue and resolution steps that were taken.

McKesson will provide Level 2 support to Clients as it relates to the interface utilized between the ESC Software and the McKesson Pharmacy Management system. This includes, but is not limited to, communication issues, API errors, and/or message failure.

Revenue impacting issues have first priority, classified as Severity One. Customer Care Technicians (Tech) triage issue to resolution. If Tech is unable to resolve, the issue is escalated to the ESC development team. When the issue is resolved an email is sent to the Client detailing the issue and resolution steps that were taken. Resolutions to known issues are documented in the Support Knowledge Base.

Error Classification (Severity 1, 2, 3, 4) and Response and Resolutions of Errors are defined below.

3. Error Classification

4. Response and Resolution of Errors

5. ESC Support Center

a. Support Services are provided during the following periods:

1. Normal Support Hours. Support Services will be available Monday – Friday from 8:00 a.m. to 10:00 p.m., Eastern Time, excluding ESC holidays (“Normal Support Hours”).
2. Store Down Issue Hours. In the event of a Store Down Issue, the Client may request Support Services 24 hours per day, 365 days per year; provided, however, in no event shall shipments of any Hardware be made outside of Normal Support Hours.
3. Support Center Contacts. To request Support Services, Client must call the following number: 877-716-2400.