These PharmacyOne Terms and Conditions, including any quote(s), the quote cover letter, and any attachments, is an agreement between Liberty Software, Inc., a Texas corporation (“Liberty”) and you, the customer (“Pharmacy”), and governs your access and use of Liberty’s Services.

By accepting this agreement, either by accessing or using the Services, or by authorizing or permitting any End User to access or use the Services, or by accepting any quote for the purchase of any software license or Services from Liberty, you expressly agree to be bound by this agreement. If you are entering into this agreement on behalf of a company, organization, or another legal entity, you are agreeing to this Agreement for that entity and representing to Liberty that you have the authority to bind such entity and its affiliates to this Agreement, in which case the term “Pharmacy,” refers to such entity and its affiliates. If you do not have such authority, or if you do not agree with this agreement, you must not use or authorize any use of the Services.

IMPORTANT: THE USE OF THE SERVICES REPRESENTS PHARMACY’S AND THE END USER’S IMPLICIT ACCEPTANCE AND CONSENT TO BE BOUND TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICES.

1. SOFTWARE LICENSE.

Subject to the terms, conditions, and limitations contained in this agreement and during the term of this agreement, Liberty grants to Pharmacy and its End Users a limited, non-exclusive, non-transferable license to use to use any software (in object code form only) provided or made available by Liberty to the Pharmacy as part of the Services. All rights, title, and ownership of the software, specifications, documentation, and any copies will remain at all times the exclusive property of Liberty.

2. SERVICES.

2.1. Updates. Liberty may make available software updates that are part of general software releases to Pharmacy. These updates may reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of third-party services. Pharmacy acknowledges that Liberty may enhance, modify, or replace the features, and functionality of the Services during the Term, but Liberty will not materially decrease the overall functionality of the Services purchased by Pharmacy during the term of the Agreement. Pharmacy will promptly, and in no event later than six (6) months from the date the update is made available, implement all fixes, updates, upgrades, and replacements of software and third-party software that may be provided by Liberty. Pharmacy acknowledges that failure to timely implement required updates may render Services inoperable or cause other Services failures.

2.2. Software Support. Liberty shall provide Pharmacy’s End Users with online training resources and help desk support, via telephone or electronic mail, in the normal operation of the Services. Help desk support is available during Liberty’s normal support center hours. After these hours, support inquiries can be sent to an emergency messaging system. Emergency messages are normally returned within two hours. The emergency messaging system is intended for emergencies only and excessive use of after-hours support will result in additional charges at Liberty’s then standard after-hours support rates.

2.3. Cooperation. Liberty’s goal is to provide professional and effective customer service. Both Liberty and Pharmacy agree to cooperate in good faith relating to the services and support provided under this Agreement. Neither party shall use abusive, offensive, threatening, harassing, hateful, inflammatory, or otherwise objectionable language when communicating with the other.

3. USE OF SERVICES.

3.1. Restrictions. Pharmacy and End User may not, and may not cause or permit others to:

• Sublicense, resell, distribute, or assign its right under the license granted under this agreement to any other person or entity;
• Publish or otherwise make the Services available for others to copy;
• Circumvent or bypass any security protection measures in or related to the software or Services;
• Modify, adapt, or create derivative works of the Services or any associated documentation;
• Reverse engineer, decompile, decrypt, disassemble, or otherwise attempt to derive the source code for the Services;
• Use Services to violate applicable laws or regulations;
• Create any competing software or Services; or
• Remove any copyright or other proprietary or confidential notices on any Services.

3.2. Internal Business Purposes Only. Pharmacy shall use the Software only to process Pharmacy’s own business data at the location(s) described in the quote for the Pharmacy’s own business and operations.

3.3. System Requirements.

3.3.1. Hardware. Services will require Pharmacy’s Devices to meet the applicable software’s minimum system requirements. Liberty is not responsible for the Pharmacy’s equipment and Pharmacy is responsible for verifying that its Devices meet or exceed the software’s minimum system requirements. Due to technology changes and industry trends, software updates may cause changes to a software’s minimum system requirements and the Pharmacy will be required to bring their equipment up to the software’s minimum requirements to install the software update. Pharmacy is responsible for installing all necessary patches and updates for its Devices, including without limitation, the operating system. Liberty assumes no responsibility nor liability for any security related issues, compliance issues, patch maintenance, or similar issues related to the Pharmacy’s Devices.

3.3.2. Internet. A high-speed connection is required for the proper operation of the Services. Pharmacy is responsible for procuring and maintaining the network connection that connects the Pharmacy’s network to the internet. Pharmacy acknowledges and understands that many Service features will involve the transmission of data over the internet, and over various networks, only part of which may be owned or operated by Liberty. Without limiting Liberty’s applicable obligations under the section 7, Liberty is not responsible for any Pharmacy Data or Service communications which are delayed, lost, altered, or intercepted, during the transmission of any data whatsoever across networks not owned or operated by Liberty, including but not limited to, the internet and Pharmacy’s local network.

3.4. Service-Specific Terms. The provision and use of certain Services are subject to Liberty’s Service-Specific Terms.

4. REFERENCE CONTENT SUBSCRIPTION.

Unless specified otherwise on quote, or Pharmacy’s subscription is listed to the effect of “database access” only, Liberty will provide Pharmacy with access to certain reference content during the term of this agreement. Reference content is provided for Pharmacy’s internal use only for use with the Services and will not be republished in any manner, including on the Pharmacy’s website, sold, rented, sublicensed, shared, copied, extracted, used in any way outside of Services, or otherwise provided to third parties. Liberty does not provide any warranty with respect to any reference content. Reference content includes:

4.1. Clinical Reference Content. Clinical reference content is clinical content provided by third-party data provider(s) for drug utilization review embedded within the Services. Pharmacy acknowledges that clinical reference content may be added, modified, changed, replaced, or removed but Liberty shall, at minimum, provide clinical reference content that allows the Services to perform allergy precautions, drug-to-drug interactions, drug dose checking, and print English and Spanish patient medication education monographs during the term of this agreement. Despite the previous sentence, clinical reference content may not be available for all drugs, patient demographics, or clinical situations. Clinical reference content is intended only to supplement the knowledge of healthcare professionals regarding drug therapies and patient counseling information. Clinical reference content is advisory only and is not intended to replace sound clinical judgement in the delivery of healthcare services.

4.2. Other Reference Content. Liberty may make available other reference content such as prescriber information, pharmacy listings, insurance information, and other content designed to improve the user experience within the Services. This content is provided “as is” and should not be relied upon without verifying its accuracy. Pharmacy acknowledges that this content may be added, modified, changed, replaced, or removed based on availability of third-party data providers during the term of this agreement.

4.3. REFERENCE CONTENT DISCLAIMER. LIBERTY AND ANY THIRD-PARTY DATA PROVIDER(S) DISCLAIM ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY AS TO THE QUALITY, ACCURACY, COMPLETENESS, OR SUITABILITY OF ANY REFERENCE CONTENT, WHETHER CLINICAL REFERENCE CONTENT OR OTHER REFERENCE CONTENT, FOR ANY PURPOSE. LIBERTY AND ANY THIRD-PARTY DATA PROVIDER ASSUME NO RESPONSIBILITY OR LIABILITY BASED ON ANY THEORY, FOR ERRORS THAT MAY APPEAR IN ANY REFERENCE CONTENT.

5. FEES AND PAYMENT.

5.1. Monthly Support Fees. Pharmacy shall pay monthly support fees, as set forth on the applicable quote, to Liberty on a monthly basis. Monthly support fees are due on the 1st of the month for the current month and are not prorated. Additional charges may result if Pharmacy activates additional features, exceeds usage thresholds, or purchases additional Services.

5.2. Transaction Fees. Transaction fees incurred by use of the Services are additional to the monthly support fees. Transaction fees are billed monthly in arrears. Transaction fees include but are not limited to:

5.2.1. Claim Switching. Claim switching will be transmitted to Liberty’s designated switch processor through Liberty’s claim gateway. Claim switching will be contracted exclusively through Liberty for claims submitted via the Services. Pharmacy shall pay Liberty for each transaction at the rate set forth in the applicable quote. Liberty acts as an aggregator on behalf of Pharmacy for claim switching and makes no warranty and assumes no liability with respect to claim switching services, for switch processor’s network or availability, or for the payment or rejection of claims by third party plans or other claim payers.

5.2.2. Claim Switching Pass-throughs. In addition to claim switch fees Liberty will also bill for claim switch pass-through fees including, without limitation, government-imposed access fees, fees resulting in changes in regulation or statute, E1 transaction addon, any third-party imposed access fees, or any other fees assessed against Liberty in connection to Pharmacy’s claim processing. Existing and future third-party plans, including but not limited to Federal Workers’ Compensation, Federal Black Lung Insurance, and some Medicare plans, requiring special fees, special processing, and/or contracts between multiple parties in addition to the Pharmacy and Liberty may be billed with a separate fee.

5.2.3. Electronic Prescription Messaging. Electronic prescription messages (“ePrescription Messages”) are electronic messages that are based on the NCPDP SCRIPT standard that include but are not limited to, electronic prescriptions and electronic refill requests, but do not include LTC related NCPDP SCRIPT messages. ePrescription Messages will be transmitted to Liberty’s designed electronic prescription provider. ePrescription Message processing will be contracted exclusively through Liberty for ePrescription Messages received and submitted via the Services. Pharmacy shall pay Liberty for each ePrescription Message sent or received at the rate set forth in the applicable quote. Liberty acts as an aggregator on behalf of Pharmacy for ePrescription Messaging and makes no warranty and assumes no liability with respect to ePrescription Messaging services, or ePrescription Message provider’s network or availability.

5.3. Pricing. All prices for fees will be charged at the rate set forth in the applicable quote or Liberty’s current rate if the rate for such service is not specified on quote. Pricing for monthly support fees, claim switching, and ePrescription Messages will remain in effect for the current term. Liberty will provide notice of any proposed increase in pricing for Services no later than ninety (90) days before the end of the then-current term, and any such increase will be effective on the first day of the next renewal term. Service-Specific Services will be billed at Liberty’s then-current rate.

5.4. Taxes. Pharmacy will pay all taxes arising from this agreement or in connection with this agreement, including but not limited to sales, use, valued added, or other taxes, but excluding taxes based on Liberty’s net income. Pharmacy will reimburse Liberty for all amounts paid or payable by Liberty in the discharge of the foregoing taxes. Liberty agrees to exempt Pharmacy from any taxes for which Pharmacy provides to Liberty a tax exemption certificate before the issuance of an invoice; provided, however, that no such exemption will be extended to Pharmacy following written notice to Liberty from a taxing authority of appropriate jurisdiction that Pharmacy does not qualify for the claimed exemption.

5.5. Billing Disputes. If Pharmacy reasonably and in good faith disputes any portion of Liberty’s charges, it must provide written notice to Liberty within ninety (90) days of the invoice date, identifying the reason for the dispute and the amount being disputed. Pharmacy’s dispute as to any portion of the invoice will not excuse Pharmacy’s obligation to timely pay the undisputed portion of the invoice. Upon resolution Pharmacy must pay any unpaid amounts within thirty (30) days. Any amounts that are found to be in error resulting in an overpayment by Pharmacy will be applied as a billing credit against future charges.

5.6. Billing and Payment. All sums due under this agreement will be paid in United States Dollars to Liberty at the address shown on Pharmacy’s most recent invoice or statement from Liberty. All amounts paid to Liberty are non-refundable. Pharmacy shall reimburse Liberty for all costs and expenses, including reasonable attorney’s fees, incurred by Liberty in enforcing collection of any amount due under this Agreement. Liberty’s acceptance of late or partial payments (regardless of how they are marked or designated including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’ or similar) will not waive, limit, or prejudice in any way Liberty’s rights to collect any amount due. As permitted by applicable law, Liberty reserves the right to charge the Pharmacy late payment penalties or interest charges on any past-due invoices that are not subject to a previously-noticed good faith dispute. Liberty may suspend access to and use of the Services for non-payment if any fees or charges are not paid within thirty (30) days of the due date.

6. TERM AND TERMINATION.

6.1. Term and Renewal. The term of this agreement begins on the first date of the software installation and continues for the initial term set forth in the initial order or quote. Upon expiration of the initial term, this Agreement will automatically renew for successive periods of either the same length as the initial term or twenty-four (24) months, whichever is shorter. In the event that a term is not defined on the initial order or quote, the term will be twenty-four (24) months.

6.2. Cancellation. Pharmacy may elect to terminate this agreement by giving written notice of non-renewal at least thirty (30) days before the expiration of the initial term or the then-current renewal term. Liberty may elect to terminate this agreement by giving written notice of non-renewal at least ninety (90) days before the expiration of the initial term or the then-current renewal term.

6.3. Termination for Cause. Either party may terminate this agreement by giving written notice to the other party if the other party: i) breaches a material term of this agreement and fails to cure such breach within thirty (30) days of written notice; ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; or iii) excessive and repeated violations of section 2.3. Liberty may terminate the agreement immediately without notice if Pharmacy violates any prohibition in section 3.1.

6.4. Service Termination. Upon termination, cancellation, or expiration of this agreement, Pharmacy shall immediately stop any use of the Services and promptly erase, destroy, or return to Liberty all copies of the software in Pharmacy’s possession that were provided as part of the Services.

6.5. Payment Upon Termination. Pharmacy acknowledges that the pricing and fees quoted are based on Liberty’s expectation that Pharmacy shall pay for all fees associated with the Services for the full length of the term of the agreement. If this agreement or Services are terminated for any reason other than as a result of a material breach by Liberty the Pharmacy shall, without limiting any other right or remedy of Liberty, pay all amounts that have accrued before termination, as well as one hundred percent (100%) of the total amount of fees, including transaction fees, (calculated for the previous 6-months or portion of if the agreement terminates prior to 6-months) that would have been due during the balance of the then-current term of this agreement. Additionally, if any hardware or professional services were provided at a discount during the current term (including any discounted hardware or professional services on the original quote if during the initial term) then Pharmacy shall pay full standard pricing for such items. If Pharmacy terminates this agreement after execution but before Services installation, Pharmacy shall pay for all items described on the applicable quote(s) and the total monthly support fees that would have been due for the entire initial term (but not including transaction fees), excluding any upfront discounts or monthly support fee discounts.

7. DATA SECURITY.

Liberty shall maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of the Pharmacy Data in accordance with the security measures described in: How We Secure Your Data, as well as in accordance with Service-Specific Terms as applicable. Pharmacy is solely responsible for securing its own Devices, including their operating system and/or firmware, and local network that the Services are used on, and will protect its Devices and network using industry standard security measures.

8. PHARMACY DATA.

8.1. Pharmacy Data Ownership. Pharmacy will retain ownership rights, including all Intellectual Property Rights to Pharmacy Data. Pharmacy is solely responsible for the accuracy, content, and legality of all Pharmacy Data.

8.2. Pharmacy Data Use. In accordance with HIPAA and any other applicable State or Federal law, Pharmacy grants Liberty a license to, and the right to access, use, disclose, collect, process, transmit, and distribute data elements within the Pharmacy Data for the following purposes:
a) To provide, secure, and improve the Services in accordance with this agreement or applicable Service-Specific Terms;
b) For optional programs or services that Pharmacy activates, enrolls in, or participates in, including but not limited to clinical programs, medication therapy management, clinical trials, medication history, rebated administration, drug rebates, patient assistance, data sharing agreements, and Non-Liberty Services, in which case that program’s terms and conditions will govern the use and license of the Pharmacy Data related to that program; or
c) As necessary to comply with any applicable law, legal process, or regulatory obligations.

8.3. Usage Data. Pharmacy agrees that Liberty may collect and use data regarding usage and performance of the Services for any purpose so long as the data does not contain protected health information, as defined by HIPAA, and any disclosure of such data does not include Pharmacy specific identifiable information.

9. DIRECT DATABASE ACCESS.

9.1. Direct Access Prohibited. Pharmacy will not access Services’ database(s) directly except through use of the Services and any direct database access, modification, updates, or inserts will void any and all warranties stated in this agreement immediately in all respects. Liberty is under no duty to correct defects or difficulties created by direct database access. Additionally, Pharmacy acknowledges that the database structure is proprietary and confidential to Liberty. Pharmacy shall not use or disclose any information regarding the internal database(s) used by the Services or share direct database access or database credentials with anyone without Liberty’s written consent.

9.2. Data Conversion. Upon written request by Pharmacy, Liberty shall, if Pharmacy is current on all Liberty invoices to date, grant direct database access to third-party data conversion companies that have been approved by Liberty (and have non-disclosure agreements with Liberty protecting Liberty’s propriety database structures from disclosure). In no event will Liberty or Pharmacy allow a competitor direct database access. Pharmacy shall pay a refundable database access deposit, or the termination fee described in section 6.5 if applicable, before Liberty will grant access to approved third-party conversion company.

10. NON-LIBERTY SERVICES.

If Pharmacy decides to enable, access, or use Non-Liberty Services, be advised that Pharmacy’s access and use of such Non-Liberty Services are governed solely by the terms and conditions of such Non-Liberty Services, and Liberty does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Non-Liberty Services, including, without limitation, their content or the manner in which they handle, protect, manage, or process data (including PHI Data) or any interaction between Pharmacy and the provider of such Non-Liberty Services. Liberty does not represent that it is possible to integrate the Services with any Non-Liberty Service. Liberty cannot guarantee the continued availability of such Non-Liberty Service features and may terminate a Non-Liberty Service’s access at any time in Liberty’s sole discretion, without entitling Pharmacy to any refund, credit, or compensation. Pharmacy irrevocably waives any claim against Liberty with respect to such Non-Liberty Services. Liberty is not liable for any damage or loss caused or alleged to be caused by or in connection with Pharmacy’s enablement, access, or use of any such Non-Liberty Services, or Pharmacy’s reliance on the privacy practices, data security processes, or other policies of such Non-Liberty Services. By enabling any Non-Liberty Services, Pharmacy expressly permits Liberty to disclose Pharmacy account information, as well as Pharmacy’s Data as necessary to facilitate the use or enablement of such Non-Liberty Services.

11. DATA BACKUPS.

Liberty is not responsible for maintaining backups of Pharmacy Data except as described in the Service-Specific Terms: Offsite Backup Service, if applicable. Data backups are the responsibility of Pharmacy. For avoidance of doubt, Pharmacy is solely responsible for complying with all applicable laws regarding document retention and accessibility in connection with its Pharmacy Data, both during and after the term of this agreement.

12. BUSINESS OPERATION.

Pharmacy agrees that Liberty assumes no responsibility for the operation of Pharmacy’s business or Pharmacy’s compliance with all applicable laws and regulations. The Pharmacy acknowledges that the Pharmacy is fully responsible for the proper submission of any healthcare claims submitted with the Services, including but not limited to the accuracy of the data, the submitted pricing, and the format of the claim.

13. INTELLECTUAL PROPERTY RIGHTS.

13.1. Intellectual Property Rights. Each party will retain all rights, title, and interest in any of its respective Intellectual Property Rights. Subject only to limited rights to access and use the Service(s) expressly as stated in this agreement, all rights, title, and interest in and to the Services, and software, and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Liberty and belong exclusively to Liberty. The rights granted to Pharmacy and End Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or any Intellectual Property Rights of Liberty.

13.2. Proprietary Software. Pharmacy and End User acknowledges that software produced or manufactured by Liberty is confidential and proprietary to Liberty. Pharmacy and End User agrees to treat all such software as proprietary and agrees to not permit or cause such software to be disclosed to, or used by, any person other than authorized employees or agents of Pharmacy. Pharmacy shall advise each End User to refrain from disclosing or delivering such software to any other person or entity, except as provided in this agreement.

13.3. Feedback. Liberty will have a royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations, or other feedback regarding the Services that Liberty receives from Pharmacy, End Users, or other third parties acting on Pharmacy’s behalf.

13.4. Use of Marks. Neither party will use the name, logo, or trademarks of the other without the other’s prior written consent. But each party grants the other the right to include the other’s name and or logo in its internal newsletter, internal training documents for internal use (so long as it is clear that such document is not authored or authorized by the other party), or customer listings.

14. INTELLECTUAL PROPERTY INDEMNIFICATION.

Liberty shall indemnify and defend Pharmacy from and against any and all damages, including reasonable attorneys’ fees, incurred by Pharmacy resulting from any third-party claim, suit, action, or proceeding (“IP Claim”) that the software furnished by Liberty under this Agreement infringes or misappropriates such third party’s valid intellectual property rights provided that Pharmacy promptly notifies Liberty in writing of the IP Claim, cooperates with Liberty, and allows Liberty sole authority to control the defense and settlement of such IP Claim (however Liberty will not settle or compromise any claim that results in liability or admission of liability by Pharmacy without Pharmacy’s prior consent). If such an IP Claim is made or Liberty anticipates such an IP Claim will be made, Pharmacy agrees to permit Liberty, at Liberty’s sole discretion, to (A) modify or replace the software, or any component or part, to make it non-infringing, or (B) obtain the right for Pharmacy to continue use the software. If Liberty determines that neither alternative is commercially feasible, Liberty may terminate this agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Pharmacy. This section will not apply to the extent that any such IP Claim arises from Pharmacy Data; Non-Liberty Services; third-party products; modification of Services by anyone other than Liberty; or the combination, operation, or use of the services with other Devices or software where a Service would not by itself be infringing. This section sets forth Pharmacy’s sole remedies and Liberty’s sole liability and obligation for any actual, threatened, or alleged IP Claims that the Services infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.

15. WARRANTIES AND DISCLAIMERS.

15.1. Software Warranty. Liberty warrants that during the term of this agreement the software produced or manufactured by Liberty and supplied under this agreement will perform the functions described in its current applicable documentation without Material Error. If software provided by Liberty does not perform as warranted, Pharmacy must promptly notify Liberty in writing describing the deficiency in the Services (including, if applicable, the support ticket number notifying Liberty of the deficiency in the software). This warranty does not apply, and Liberty will have no responsibility or liability, for defects caused or arise in connection to (a) modifications to the software made by anyone other than Liberty, (b) Devices owned and supplied by Pharmacy or Devices not in compliance with the software’s then-current minimum system specifications, (c) related to integrations with Non-Liberty Services or (d) data entered into the software by Pharmacy, End Users, or Non-Liberty Services.

15.2. Remedy. Liberty’s sole and exclusive obligation under this warranty is to correct the Material Error so that the software substantially performs in accordance with its current applicable documentation. Pharmacy’s exclusive and sole remedy if Liberty fails to make such correction, and such Material Error is impacting Pharmacy’s operations, is to terminate this agreement as described under section 6.3, titled Termination for Cause.

15.3. WARRANTY DISCLAIMERS. THE WARRANTY IN SECTION 15.1 IS A LIMITED WARRANTY AND IS INSTEAD OF ANY AND ALL OTHER WARRANTIES, AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED, IN FACT OR IN LAW, REGARDING ANY EQUIPMENT, DATA, SOFTWARE, OR SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, DESIGN, TITLE, NON-INFRINGMENT, OR FITNESS FOR A PARTICULAR PURPOSE. PHARMACY ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR THE EVALUATION AND SELECTION OF THE EQUIPMENT AND SOFTWARE FOR PHARMACY’S OWN PURPOSES. LIBERTY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERUPTED, TIMELY, ERROR-FREE, OR THAT LIBERTY WILL CORRECT ALL SERVICE ERRORS, OR THAT THE SERVICES WILL MEET THE PHARMACY’S REQUIREMENTS OR EXPECTATIONS. LIBERTY IS NOT RESPONSIBLE FOR THE PERFORMANCE, OPERATION, OR SECURITY OF THE SERVICES THAT ARISE FROM PHARMACY DATA, THIRD-PARTY APPLICATIONS, OR NON-LIBERTY SERVICES. NO OTHER ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY PHRMACY FROM LIBERTY WILL CREATE ANY WARRANTY OR OBLIGATION NOT EXPRESSLY STATED IN THIS AGREEMENT.

16. LIMITATION OF LIABILITY.

16.1. EXCLUSION OF DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) WILL LIBERTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS, OR LICENSORS, BE LIABLE TO PHARMACY, END USER, OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, FAILURE TO REALIZE EXPECTED SAVINGS, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND WHATSOEVER , COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSS OR DAMAGES, OR FOR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, OR PROFESSIONAL SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

16.2. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, LIBERTY’S AGGREGATE LIABILITY TO THE PHARMACY, END USER, ITS AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES, OR PROFESSIONAL SERVICES, WILL IN NO EVENT EXCEED THE MONTHLY SUPPORT FEES, EXCLUDING TRANSACTION FEES, ACTUALLY PAID BY THE PHARMACY DURING THE TWELVE (12) MONTHS BEFORE THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY PHARMACY, END USER, AND ITS AFFILIATES, AND WILL NOT BE CUMULATIVE. This limitation of liability does not apply to willful misconduct by Liberty. Pharmacy acknowledges and agrees that the essential purpose of this section is to allocate the risks under this agreement between the parties and limit potential liability given the fees, which would have been substantially higher if Liberty were to assume additional further liability. Liberty has relied on these limitations in determining whether to provide Pharmacy with the rights to access and use the Services provided for in this agreement and Liberty would not have entered into this agreement but for the pharmacy’s agreement to these limits on Liberty’s liability. If applicable law limits the application of any provision listed in this section, Liberty’s liability will be limited to the maximum extent permissible.

16.3. Enforceable against Liberty. Any claims or damages that Pharmacy may have against Liberty will only be enforceable against Liberty and not any other entity, nor any officers, directors, representatives, or agents of Liberty or any other entity.

17. DISPUTE RESOLUTION.

17.1. Good Faith Attempt to Settle Disputes. In the event of any dispute, claim, or disagreement arising from or relating to this agreement or breach of this agreement, a representative from each party will meet and confer to make a reasonable and good faith effort to settle or otherwise resolve such dispute. If this meeting fails to resolve the dispute, the parties agree to attempt to mediate their dispute as a prerequisite to any other process, including arbitration. If Pharmacy threatens legal action or arbitration, Liberty reserves the right to require Pharmacy to submit any support requests exclusively in writing either by email or within Liberty’s online support portal.

17.2. Binding Arbitration. In the event mediation does not result in a resolution of the dispute, claim, or disagreement then, upon notice by either party to the other, all disputes, claims, or disagreements will be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. Any arbitration proceeding and enforcement of any arbitration award will be held in Tarrant County, Texas and will be collectable in any court of competent jurisdiction.

17.3. Legal Fees. Should either party bring suit in court or initiate arbitration in connection to this agreement, the prevailing party will be paid its reasonable legal fees and other costs incurred in that action or proceeding in addition to other relief to which it may be entitled.

18. GENERAL PROVISIONS.

18.1. Assignment. Neither party may, directly or indirectly, by operation of law or otherwise, assign all or any part of this agreement or rights under this agreement, or delegate performance of its duties under this agreement, without written prior consent of the other party, which consent will not be unreasonably withheld. Despite the previous sentence (a) Pharmacy may assign this Agreement in connection with any merger or change of control of Pharmacy or the sale of all or substantially all of Pharmacy assets, provided that (i) any such successor agrees to fulfill its obligations pursuant to this agreement, (ii) Pharmacy and the assignee execute Liberty’s assignment form, (iii) and, successor is not a entity that competes with Liberty; (b) Liberty may assign this agreement without Pharmacy’s consent to an affiliate (an entity that directly or indirectly controls, is controlled by, or is under common control) of Liberty or in connection with any merger or change of control of Liberty or the sale of all or substantially all of Liberty’s assets provided that any such successor agrees to fulfill its obligations pursuant to this agreement. Subject to the foregoing restrictions, this agreement will bind, benefit, and be enforceable by the parties and their respective successors and assigns.

18.2. Entire Agreement. This agreement, together with any exhibits, and quote(s), each of which is expressly incorporated into this Agreement with this reference, constitutes the entire agreement between the parties and supersedes and replaces any and all prior or contemporaneous understandings, negotiations, discussions, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding its subject matter. Neither party has relied on any such prior or contemporaneous communications.

18.3. Order of Precedence. In the event of any inconsistencies between the terms of a quote, attachments, and this agreement, an amendment signed by both parties shall take precedence, followed by the quote, and then this agreement. The terms of any purchase order, request for information, request for proposal, or other similar documentation Pharmacy provides will not amend or become part of this agreement and will not be binding on Liberty and such terms are rejected.

18.4. Notices. Except where otherwise expressly stated in the Agreement, written notices are deemed to have been fully given when made in writing and delivered in-person, upon delivery and receipt via email, or by a nationally recognized overnight courier (receipt requested), or by mailed certified or registered mail (return receipt requested) and will be deemed given upon receipt. Notice to Liberty will be at the address identified on Pharmacy’s most recent invoice or statement from Liberty and to Pharmacy at the billing address on file. If by email, then notice to Liberty at legalnotice@libertysoftware.com and to Pharmacy at the current accounting email or account administrator’s email on file or other email address as requested by pharmacy.

18.5. Governing Law. This agreement will be governed by the laws of the State of Texas, without reference to conflict-of-laws principles.

18.6. Compliance with Laws. Each party agrees to comply with all applicable laws and regulations.

18.7. Export Prohibited. Pharmacy agrees that the Services, data, information, or software programs and/or materials resulting from the Services (or direct product) will not be exported outside of the United States, either directly or indirectly.

18.8. UCC Not Applicable. The parties agree that this agreement is not a contract for sale of goods and will not be governed by any codification of the Uniform Commercial Code or any codification of the Uniform Computer Information Technology Act.

18.9. Force Majeure. Excluding either party’s payment obligations under this agreement, neither party shall be liable for loss, delay, or nonperformance to the extent resulting from any force majeure event, including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of third parties, failure of the Internet, acts undertaken by third parties (including without limitation denial of services attacks), governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute (other than those involving other party’s employees), or shortage of materials, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible and any delivery date shall be extended accordingly.

18.10. Severability and Waiver. If any provision is held by a court of competent jurisdiction to be contrary to law or unenforceable, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach.

18.11. Survival. Provisions that survive termination or expiration of this agreement are those relating to limitation of liability, indemnification, dispute resolution, payment, and others which by their nature are intended to survive.

18.12. Miscellaneous. There are no third-party beneficiaries to this agreement. The section headings used in this agreement are included for reference purposes only and shall not affect the meaning or interpretation of this agreement in any way. This agreement may be executed in counterparts and/or by facsimile or electronic signature and if so executed shall be equally binding as an original copy of this agreement executed in ink by both parties.

19. DEFINITIONS.

Capitalized terms used in this agreement but otherwise not defined have the following meaning:

“Device(s)” means physical hardware including but not limited to workstations, servers, printers, scanners, and POS equipment.

“End User” means a person that Pharmacy has provided login credentials or otherwise allowed access to the Services.

“Intellectual Property Rights” means any and all of a party’s patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and/or proprietary rights.

“Material Error” means either an error that: (i) materially, adversely affects operation of the entire Services or (ii) creates a serious loss of functionality important in the daily operation of a module and for which a work around is not available.

“Non-Liberty Service(s)” means third party products, applications, services, software, networks, systems, directories, websites, databases, and information which Liberty’s Software links to, either directly or via Liberty’s API or SDK or which Pharmacy may connect to or enable in conjunction with Liberty’s Software including, without limitation, Non-Liberty Services which may be integrated directly into Liberty’s Software by Pharmacy or at Pharmacy’s direction.

“Pharmacy Data” means Pharmacy’s data that is collected, stored, processed, or generated thought Pharmacy’s use of the Services.

“Service-Specific Terms” means the additional terms and conditions that are applicable to additional features when activated or used by Pharmacy.

“Services” means software, solutions, applications, services, and other products created by Liberty and identified on the applicable quote(s). It does not include any source code or any third-party software or programs.