Customer Subscription Agreement 

RXNow Terms and Conditions

This Software Subscription Agreement (hereinafter referred to as the “Agreement”) is entered into by and between Quest Ancillary Services, LLC., a Florida Limited Liability Corporation, having its principal place of business at 933 Lee Road, Suite 250, Orlando, Florida 32810

U.S.A. (hereinafter referred to as “Company”) and the business entity or organization identified on the signature page of this Agreement (hereinafter referred to as “Subscriber”).

  1. Subscription of Software and Platform.

Subject to the limitations and conditions contained in this Agreement, Company hereby agrees during the Term of this Agreement to provide to Subscriber certain services as described in Section 4 of this Agreement (the “Services”) and, in conjunction therewith, hereby grants to Subscriber, the non-transferable and non-exclusive use of the Company’s web based dispensing platform (the “Software”) in accordance with the terms and conditions of this Agreement. Subscriber hereby subscribes to such services, accepts said Subscription and agrees to use the Software expressly in accordance with the terms and conditions set forth in this Agreement.

  1. Definitions.

2.1      “Application” means the use of the Software by Subscriber or its members for the purpose of medication management including but not limited to managing Subscriber’s drug inventory, printing labels for prescriptions, generating reports, printing patient information materials and managing payments and reimbursements.

2.2      “Application Software” means Company’ standard version of  the  web  based dispensing Software (version TBD).

2.3      “Documentation” means manuals, specifications, instructions or other writings related to the use of the Software and Services as provided in this Agreement in either electronic or other form, as the case may be.

2.4      “Hardware” means the hardware provided by Company to Subscriber to be used in conjunction with the Software as described in Section 6.2 of this Agreement.

2.5      “Operating Environment Software” means system and support software that control and manage the database and user interface function of the System.

2.6      “Operating System” means system software controlling the overall operation of computer system resources, for example, input and output distribution, interrupt processing, memory allocation, file handling, and communications.

2.7      “Services” means those services to be provided to Subscriber pursuant to section 4 of this Agreement.

2.8      “Software” means (i) the object-code version of the computer software provided by Company to Subscriber under this Agreement, including but not limited to, the RXNow web based dispensing Software, Custom DLL’s, (both used in printing) Operating Environment Software; (ii) the periodic Software Updates and Software Upgrades; and (iii) any enhancements, modifications, or revisions of the foregoing.

2.9    “Software Error” means actual coding errors inducing failure of the Software to substantially perform program functions specified in the Documentation or errors in the Documentation.

2.10    “Software Update” means a revision to a Software Upgrade of the Application Software to provide corrections and minor enhancements.

2.11    “Software   Upgrade”   means   a   new   version   of   the   Application   Software incorporating new features and enhancements.

2.12    “Subscriber” means the individual or entity identified on the signature page of this Agreement and any person, firm, corporation, partnership, association or other entity which now or in the future controls, is controlled by, or is under the common control with Subscriber.

2.13    “System” means the Operating System, Operating Environment Software, and the web based application Software and hosted platform.


  1. Term of Agreement

3.1      The term of this Agreement and the license to access and use the Software shall be  for  a  period  commencing  on  the  date  this  Agreement  is  executed  by  Subscriber  and continuing thereafter until terminated by either party upon providing ninety (90) days written notice of termination and provided that Subscriber complies with all terms and conditions of this Agreement.  The Agreement shall terminate without notice at such time as Subscriber ceases to be a customer of Company.

3.2      If Subscriber violates any of the terms or conditions of this Agreement and fails to remedy  the  violation  within  thirty  (30)  days  after  receiving  written  notice  by  Company, Company may, in addition to such other rights as Company may have at law, equity, or under this Agreement, terminate all licenses granted hereunder, remove from Subscriber’s place of business all Hardware provided to Subscriber by Company, terminate Subscribers access and use of the Software and cease to provide Software Upgrades, Software Updates or support services pursuant to this Agreement.

3.3      Upon termination, Subscriber shall immediately cease use of the Software and return any Documentation and Hardware provided by Company.  Subscriber shall continue to have access to the Software for thirty (30) days after termination to enable Subscriber to retrieve its data and print out the necessary reports. In the event that Company is required to initiate legal action to compel Subscriber to cease using the Software or for the return of the Documentation and Hardware, Subscriber acknowledges and agrees that Company shall be entitled to obtain a judicial order granting injunctive relief and ordering the return of the Documentation without the need to post a bond as security.


  1. Services to be provided by Quest Ancillary Services

During the term of this Agreement, Company shall provide to Subscriber the following services:

4.1      Host Computer System.

4.1.1   Company shall provide all equipment, software and services necessary for the operation and maintenance of its host computer systems.   Company reserves the right to change the configuration of its systems and change the equipment or software at any time, in its sole discretion.

4.1.2   Company shall provide communication with its host computer systems to Subscriber’s via standard Internet protocols.   Subscriber shall be responsible for separately obtaining and preparing for an ISP account with an appropriate internet connection for communicating with Companies host computer systems.

4.1.3   Company shall provide information to Subscriber regarding data backup procedures, security and other functions as reasonably requested by Subscriber.

4.1.4   The host computer systems upon which the Software shall be hosted shall be a secure, HIPAA compliant server utilizing high-availability technologies.  All files will be backed up on a daily basis on a separate secure server. Notwithstanding Companies obligation to backup Subscriber’s data on a regular basis, Subscriber agrees that it shall be the Subscriber’s primary responsibility to periodically create hard-copy reports of its data to protect against accidental data loss or destruction.

4.2      Application Software.

4.2.1   Company shall install, operate  and  maintain  the  Software on  its  host computer systems.

4.2.2   Company shall provide Subscriber with twenty-four (24) hour access and use of the Software via internet communications, except for regularly scheduled maintenance periods. With the exception of emergency repairs, system maintenance is performed outside of normal business hours and are communicated to Subscriber.

4.2.3   Company shall provide Subscriber with reasonable volume for storage of data on Companies host computer systems though reserves the right to impose limitations on the amount of data that may be stored on its servers or impose additional charges if Subscriber exceeds the maximum transaction limit.

4.2.4 Company shall provide necessary improvements, enhancements, modifications, revisions, upgrades and updates as it may, in its sole discretion, determine.

4.2.5   The Software shall only be used by Subscriber for Subscriber’s business requirements in  relation  to  the  prescribing and  dispensing of Pharmaceutical products, and performing administrative functions pertaining thereto and for no other purpose.

4.3      Initial Setup.

4.3.1   Company  shall  initially  establish  an  account  for  the  Subscriber  and provide the Subscriber with a user ID and password to access the administrative portion of the web based dispensing Software.

4.3.2   Company shall provide reasonable support to the Subscriber, program administrator and a designated trainer in setting up the clinic preferences including purchase order numbering sequence, lot number tracking, suggested order rounding values, Rx numbering sequence, and general system usage.

4.3.3 Company shall provide assistance  to  the  Subscriber,  program administrator and designated trainer in establishing guidelines for the clinic setup.

4.3.4   Subscriber shall designate a program manager to act as the Program Administrator during the term of this Agreement.  All communications between Company and Subscriber shall be with the Subscriber’s Program Administrator.

4.4      Additional Services.

4.4.1   Company shall provide to Subscriber additional services as may have been selected by the Subscriber in an agreement separately executed by Subscriber including, but not limited to, monthly State Controlled Substance Reporting as required by applicable state and federal laws, additional on-site and technical support services, program rollout support, advanced custom application development.


  1. Prices and Payment.

5.1      The  fees  to  be  paid  to  Company for  the  services  and  products  provided  to Subscriber pursuant to this Agreement shall be as set forth in Appendix A of this agreement and are Non-refundable.  Subscriber agrees to pay Company in accordance with this agreement as it may be amended from time to time upon Company providing thirty (30) days prior written notice to Subscriber.

5.2      Subscriber  shall  be  billed  on  a  monthly basis  for  all  services  and  products provided during the preceding month and all bills shall be paid by Subscriber to Company within five (5) days of receipt via pre-authorized check transaction.

5.3      All amounts due and payable to Company hereunder shall, if not paid when due, bear interest at the rate of one and one-half percent (1½%) per month, from the date payment is due, or the maximum amount permitted by law, whichever is less.  No finance charge shall be applied to any good faith disputed amount.   Should Subscriber fail to pay any non-disputed amount specified herein when due and then fail to cure this delinquency within thirty (30) days following written notice by Company, then, in addition to such other rights as Company may have at law, equity, or under this Agreement, Company reserves the right to discontinue the services that it provides hereunder and to terminate Subscriber’s access to the Software.


  1. Access and Delivery of Hardware.

6.1     Company will use its’ reasonable best efforts to grant access to the Software and Documentation within fifteen (15) business days of the date this agreement is executed by Subscriber and the Subscriber has agreed to the terms and conditions set forth in this Agreement (the “Effective Date”).

6.2      If hardware is provided by Company, Subscriber agrees to pay upon receipt of an invoice from Company all shipping charges associated with delivery of the Hardware provided on behalf of Subscriber in accordance with Section 6.2 of this Agreement.


  1. System Requirements.

Except as provided in Section 6.2 of this Agreement, Subscriber and Subscribing Physician agree to provide, at its own expense, such computer equipment and software as is deemed reasonably necessary by Company to at least meet the minimum software requirements as follows:  Any Windows or Apple computer; Pentium 4 or above CPU; 512 MB RAM (1 GB recommended); 200 MB available hard disk space; Digital Subscriber Line, Broadband or cable modem high-speed Internet access.


  1. Software Subscription.

8.1      Ownership of Software.

8.1.1  Title to the Software shall at all times remain with Company.   In consideration of the subscription fees paid under this Agreement, Company grants to Subscriber non-exclusive and non-transferable use of the Software for Subscriber’s business operations. Company retains all  rights to the Software not  expressly granted in this Agreement.   The Software provided under this license may only be used by Subscriber and its authorized employees and agents.

8.1.2   Subscriber shall not copy, translate, create derivative works, decompile, disassemble, reverse engineer, or transfer the Company Software or Documentation, or permit others to do so. Subscriber shall not sub-license, rent, re-sell, or sell Company Software without prior written consent from Company.

8.1.3   Subscriber accepts responsibility for selection of the Software to achieve its intended results; agrees to appoint a Program Administrator responsible for communication with Company and accepts responsibility for the actual operation of the Software.  Subscriber shall provide Company with written notice of any change in the Program Administrator or authorized users.

8.1.4   Subscriber shall provide to Company, upon reasonable request in writing, a certificate stating the names of the employees and agents of Subscriber who are authorized to access and use the web based Software.

8.1.5   The obligations under this Section 8.1, as well as the obligations set forth in Sections 8.2, 9, and 11 of this Agreement as well as the obligations to make payments due hereunder, shall survive the termination or rescission of this Agreement.

8.2      Confidentiality of Information.

8.2.1   Subscriber understands  that  the  Software,  source  codes,  object  codes, algorithms, interface screens and Documentation related thereto and this Agreement (collectively “Proprietary Information”) whether acquired now or hereafter, including evaluation software/documentation, if any, constitute valuable properties and trade secrets of Company, which   Proprietary   Information   embodies   substantial   creative   efforts   which   are   secret, confidential and not generally known by the public and which secure to Company a competitive advantage.    Subscriber  agrees  during  the  term  of  this  license  and  thereafter  to  hold  the Proprietary Information in strict confidence and to not permit any person or entity to obtain access except as required for Subscriber’s own internal use. Subscriber shall inform Company promptly in writing of any actual or suspected unauthorized use, copying or disclosure of the Proprietary Information.   The obligations under this section shall survive the termination or rescission of this Agreement.   Subscriber acknowledges that any breach of this provision by Subscriber shall cause Company irreparable harm and that monetary damages would be insufficient.

8.2.2   “Confidential Business Information” means information, without regard to form, including, but not limited to, the Software, Documentation, technical or nontechnical data, research data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, financial plans, product plans, or a list of actual or potential Subscribers or suppliers which is not commonly known by or available to the public, and which information (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.   Company agrees to maintain in confidence Subscriber’s Confidential Business  Information;  provided,  however,  that  Company  may  disclose  such  Confidential Business Information to its employees and other parties performing services for Subscriber related to the purposes of this Agreement who have a need to know and who have agreed in writing to maintain the confidential nature of such information as set forth herein subject to the requirements of Section 8.2.4.  Notwithstanding the above, Company may use knowledge and information learned as a result of its work hereunder to make modifications and enhancements to the Software; provided, however, that in no event shall Company include or incorporate any of Subscriber’s Confidential Business Information into any Products or Software produced by Company including, but not limited to, the Software, without Subscriber’s express prior written consent.  Subscriber shall acquire no rights to the Software as a result of such use, whether as author, joint author, or otherwise, and Subscriber hereby expressly disclaims any interest therein.

8.2.3   Non-Solicitation of Employee/Consultants.   During the period of this Agreement and for a period of one (1) year after the termination of this Agreement, neither Company nor Subscriber shall directly or indirectly, either alone or in concert with others, solicit or entice any employee of or consultant to the other party to leave their employment or work for a position with the other party.

8.2.4   Compliance with HIPAA Business Associate Obligations.    The following definitions shall apply to the provisions of this    “Disclose”  and  “Disclosure  mean,  with  respect  to Health Information, the release, transfer, provision of access to, or divulging in any other manner of Health information outside Company’ internal operations or to other than its employees.    “Health  Information”  means  information  that  (a) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to identify the individual); and (c) is received by Company from or on behalf of Subscriber, or is created by Company, or is made accessible to Company by Subscriber.   “HIPAA” means the Administrative Simplification provisions of the federal Health Insurance Portability and Accountability Act of 1996, and all regulations promulgated thereunder, as amended from time to time pursuant to this Agreement.    “Services” means the services provided by Company.  “Use” or “Uses” mean, with respect to Health Information, the sharing, employment, application, utilization, examination or analysis of such Information within Company’ or Subscriber’s internal operations.    Permitted Uses and Disclosures of Health Information.    Company shall Use and Disclose Health Information only as necessary or appropriate to provide the Services, and as otherwise provided in this Section 8.2.4;    Company   shall   Disclose   Health   Information   to Subscriber  upon request;  Company may,  as  necessary  for  the  proper management and administration of its business or to carry out its legal responsibilities;    Company may use and disclose Health Information if (a) the Disclosure is required by law, or (b) Company obtains reasonable assurance from the person to whom the information is Disclosed that the Health Information will be held confidentially and Used or further Disclosed only as required by law or for the purpose for which it was Disclosed to the person, and the person agrees to notify Company of any instances of which the person is aware in which the confidentiality of the Health Information has been breached. Company shall not Use or Disclose Health Information for any other purpose.   Companies Adequate Safeguards for Regarding Protected Health Information.    Company  warrants   that   it   shall   implement   and   maintain appropriate safeguards and commercially reasonable policies and procedures in its organization to ensure the security of PHI and the prevention of the Use or Disclosure of Health Information in any manner other than as permitted by under this Agreement.    Subscribers  Adequate  Safeguards for  Regarding  Protected Health Information.     Subscriber  warrants  that  it  shall  implement  and  maintain appropriate safeguards and commercially reasonable policies and procedures in its organization to ensure the security of PHI and the prevention of the Use or Disclosure of Health Information in any manner other than as permitted by under this Agreement. Should Subscriber have access to  its  customers  PHI,  Subscriber  shall  have  the  necessary  HIPAA  Business  Associated Agreement language as part of their enrollment process. Company shall not be responsible for any Use or Disclosure of Health Information by Subscriber.    Reporting Non-Permitted Use or Disclosure.   Company shall report to Subscriber each Use or Disclosure that is made by Company, its employees, representatives, agents or subcontractors that is not specifically permitted by this Agreement. The initial report shall be made by telephone call to Subscriber’s privacy officer within forty- eight (48) hours from the time Company becomes aware of the non-permitted Use or Disclosure, followed by a written report to the Subscriber’s privacy officer no later than ten (10) business days from the date Company becomes aware of the non-permitted Use or Disclosure.   Availability of Internal Practices, Books and Records to Government Agencies.   Company agrees to make its internal practices, books, and records relating to the Use and Disclosure of Health Information available to the Secretary of the federal Department of Health and Human Services for purposes of determining Subscriber’s compliance with the HIPAA.    Access to and Amendment of Health Information.  Company shall, to the extent Subscriber determines that any Health Information constitutes a “designated record set” under HIPAA, (a) make the Health Information specified by Subscriber available to the  individual(s) identified by Subscriber as  being entitled  to  access  and  copy that  Health Information, and (b) make any amendments to Health Information that are requested by Subscriber.  Company shall provide such access and make such amendments within the time and in the manner specified by Subscriber.    Accounting  of  Disclosures.    Upon  Subscriber’s  request,  and within ten (10) days of the request, Company shall provide to Subscriber an accounting of each Disclosure of Health Information made by Company or its employees, agents, representatives or subcontractors.    However,  the  parties  agree  that  Company  is  not  required  to  provide  an accounting of those Disclosures that are necessary to perform the Services because such Disclosures are either for payment, treatment, or health care operations purposes.   Company shall, however, provide an accounting of each wrongful Disclosure and any Disclosure that is not necessary in order to perform the Services.

Any accounting provided by Company under this Section shall include:   (a) the date of the Disclosure; (b) the name, and address if known, of the entity or person who received the Health Information; (c) a brief description of the Health Information disclosed; and (d) a brief statement of the purpose of the Disclosure.  For each Disclosure that could require an accounting under this Section, Company shall track the information specified in (a) through (d), above, and shall securely maintain the information for six (6) years from the date of the Disclosure.  Disposition of Health Information Upon Termination or Expiration.    Upon  the  termination  or  expiration  of  this  Agreement,  Company  shall,  in accordance with any reasonable instructions from Subscriber, either return or destroy all Health Information in the possession or control of Company or its agents and subcontractors. However, if Company determines that neither return nor destruction of Health Information is feasible, Company may retain Health Information provided that it (a) continues to comply with the provisions of this Agreement for as long as it retains Health Information, and (b) further limits Uses and Disclosures of Health Information to those purposes that make its return or destruction infeasible.   Company’ obligations under this Section shall survive the termination or expiration of this Agreement. No Third Party Beneficiaries.   There are no third party beneficiaries to this Section 8.2.4.  Relationship to Services Agreement Provisions.   In the event that a provision of this Section 8.2.4 is contrary to another provision of this Agreement, the provision of this Section 8.2.4 shall control.  Interpretation.   Any ambiguity in this Section 8.2.4 shall be resolved in favor of a meaning that permits the parties to comply with HIPAA.  Amendment.    The  parties  agree  to  take  such  action  as  is necessary to amend this Section 8.2.4 from time to time as is necessary for the parties to comply with HIPAA.


  1. Limited Warranties.

9.1      Intellectual Property.  Company represents and warrants that it has title to or the rights necessary to grant access to the Software.  In the event Subscriber is prevented from using the Software, or such use is substantially interfered with due to the issuance by a court of competent jurisdiction of a temporary restraining order, preliminary injunction, or a final judgment in respect of the infringement of any copyright, trademark, patent, trade secret or other proprietary right related to the Software, then, at no additional cost to Subscriber, Company agrees to acquire for Subscriber’s benefit a license or other rights for the prior use of the Software and, in order of priority, to (a) firstly, acquire for Subscriber’s benefit a license or other rights for the continued use of the Software, or (b) secondly, render the Software non-infringing with no substantial loss of functional capability of. Company agrees that it shall at its cost assume and take the lead in the defense of any claim, action, suit, or proceeding alleging any of said infringements although may Subscriber may participate in the defense thereof at its own expense through counsel of its  own choosing.   Company’s indemnity obligation is  further conditioned upon: (1) the Subscriber notifying Company promptly in writing of any allegation of infringement; (2) the Subscriber shall not make any admissions without the prior written consent of Company, unless otherwise required by law; and (3) the Subscriber shall allow Company to conduct and/or settle all negotiations and litigation and provide Company with all reasonable assistance as requested by Company.

The foregoing indemnity sets forth Company’s entire liability in respect of copyright or other intellectual property rights, and does not extend to any infringement from modification of any sort made by the Subscriber to the Software, or from the use of the Software in combination with other software products not supplied by Company.

9.2      Company Warranties.

9.2.1   During  the  Term  of  this  Agreement,  Company  will  correct Software  Errors  in  the  Application  Software  which  are  reported  to  it  within  that  period. Company does not warrant that the Application Software is error free.  Company shall not be liable for, but will correct as soon as reasonably possible, any errors in the Company Software, Platform, and user Documentation.

9.2.2   Other than as set forth in this section, Company disclaims all other warranties,  express  or  implied,  respecting  the  Software,  Documentation  and  all  Services provided under this Agreement, including any implied warranties of merchantability or fitness for a particular purpose.


  1. Software Updates and Upgrades

10.1    Software Error Correction.  Company hereby assumes the obligation to correct Software Errors, as described below:

10.1.1 Software Errors. Company will correct Software Errors in the Application Software. Subscriber agrees not to attempt correction of apparent errors in the Application Software while this Agreement is effect, except under the direction of Company. Subscriber expressly acknowledges and agrees that any correction made by Subscriber or any other  person,  except  with  the  express written  consent  of  Company, will  void  any support obligation of Company hereunder and result in the immediate termination of this Agreement without notice.

10.2    Software Updates.  Corrections to the Application Software will be provided to Subscriber on a periodic basis at Company’ sole discretion in the form of a Software Update to the Application Software.

10.3    Software Upgrades.    Company will  notify Subscriber of  any new  Software Upgrades, including a list of all enhancements incorporated since the prior Software Upgrade. Company shall provide to Subscriber each new Software Upgrade for no additional fee –baring any custom development agreed to by Subscriber and Company with a separate Statement of Work.  In order to accommodate a Software Upgrade, Subscriber agrees to also upgrade, if a prerequisite, to the latest Company approved releases of the Operating System and Operating Environment. Subscriber acknowledges that new Software Upgrades are subject to the terms and conditions of this Agreement.

10.4    Telephone Help-Desk Support.  Company will provide to Subscriber First Tier telephone help-desk support during Company’s normal business hours, 9:00 a.m. to 5:00 p.m.  EST, Monday through Friday, excluding company holidays. First level support consists of telephone support provided directly to the dispensing Physician by the Subscriber. Second-tier / third-tier level support for the purpose of identifying and diagnosing system problems associated with the Software,  and  to  answer any  general  product  questions in  connection  with  the  use  of  the Software will be acknowledged within 4 hours and addressed as quickly as possible through Company’s support que.

10.5    Access to System.   Subscriber agrees to allow Company reasonable access to Subscriber’s and affiliates computer systems and non-protected data in order to provide the necessary maintenance and support services pursuant to this Agreement.   Subscriber further agrees that Company shall have continued access to Subscriber’s data for a period of thirty (30) days following the termination of this Agreement to enable Company to download Subscriber’s data in a CD format to be provided to Subscriber.  Thereafter, Company is authorized to remove all of Subscriber’s data from the System and Company shall thereafter have no liability to retain such data for Subscriber.


  1. Remedies.

11.1    Subscriber’s  remedies  with  respect  to  any  Hardware,  Operating  System,  or Operating Environment Software are as set forth in the manufacturer’s equipment warranty and maintenance  agreements  and  in  the  applicable  Software  licenses,  respectively;  except  as otherwise expressly provided in this Agreement, Company shall no liability or responsibility therefore.

11.2    In the event the Application Software fails to perform the functions specified in the Documentation, upon notice from Subscriber, Company will, under the warranty or maintenance provisions of this Agreement, as the case may be, provide fixes or workarounds to achieve the functionality described in the Documentation.

11.3    In no event will Company be liable to Subscriber for any indirect, exemplary, special, consequential or other incidental damages, lost profits, lost savings, loss of use, or loss of data, regardless of the form of action, whether in contract or tort, arising out of the use or inability to use the Software or loss or destruction of Subscriber’s data, even if Company has been advised of the possibility or likelihood of such damage.   In no event shall Company be liable for any losses or damages resulting from any cause that exceed the subscription price of the Software.

11.4    No action arising out of any claimed breach of this Agreement or transactions thereunder may be brought more than six (6) months after the agreed party learns or should have learned of such breach.

11.5    Any legal action to be brought hereunder shall be brought in the Orange County Superior Court in Orlando, Florida, U.S.A.   Subscriber submits to the jurisdiction of the Orange County Superior Court in connection with any dispute arising under this Agreement.


  1. Export Assurances.

Subscriber shall not (1) use the Software and/or Documentation or (2) sell, lease, license, export or otherwise dispose of the Software to any person, firm, corporation or governmental agency which Subscriber knows, or has reason to believe will use, sell, lease, license, export or other otherwise dispose of the Software in any country or territory where the disposition is prohibited or regulated by any law or regulation of the United States of America, without prior approval under law and the prior written consent of Company.


  1. General Terms.

13.1    All Schedules referred to in this Agreement are hereby incorporated herein by this reference.

13.2    Except  as  it  relates  to  Subscriber’s  obligation  to  make  payments  hereunder, neither party shall be liable to the other for default if caused by war, fire, strike, riot, act of God, delay of carriers, governmental order or regulation, complete or partial shutdown of plant, unavailability of equipment from suppliers, and/or other similar occurrences beyond the reasonable control of the parties.

13.3    Neither this Agreement nor any rights or obligations hereunder shall be assigned or otherwise transferred by Subscriber without the prior written consent of Company, which consent shall not be unreasonably withheld.  Company shall provide consent in the event that substantially all of Subscriber’s assets and liabilities or capital stock are acquired by a third party who agrees in writing to be bound by the terms and conditions of this Agreement, including satisfaction of all outstanding liabilities and payment obligations of Subscriber then owing to Company.  In addition, Company will require the proposed assignee to agree in writing to be bound by this Agreement.  Company may assign this Agreement entirely in its discretion upon the express written assumption of the obligations hereunder by the assignee.

13.4    This  Agreement  and  the  parties’  rights  and  obligations  hereunder  shall  be governed, interpreted and enforced in accordance with the substantive and procedural laws of the State of Florida, without reference to conflicts of law provisions.

13.5    This  Agreement and  its  Schedules contain  the  entire  agreement between  the parties hereto, superseding all previous agreements, representations, understandings and negotiations. Subscriber expressly acknowledges in entering into this Agreement that Subscriber did not rely on any representation or warranty other than those expressly set  forth in this Agreement.   In the event Subscriber issues a purchase order, request for quotation or other purchase document covering the subject matter of this Agreement (whether issued before or after the execution of this Agreement), such instrument shall be deemed for Subscriber’s internal use only, and any terms and conditions contained therein shall be superseded by the terms and conditions of this Agreement and the Service and Credit Agreement.   No amendment to this Agreement shall be effective unless it is in writing and signed by the duly authorized representative of Company.  No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented.   Any consent by any party to or waiver of a breach by the other, whether express or implied, shall not constitute a consent to, waiver or excuse for any other, different or subsequent breach.

13.6    The invalidity or unenforceability of any particular provision(s) of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted, and this Agreement shall remain in full force and effect.

13.7    This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors and assignees of the parties hereto, but nothing in this section shall be construed as consent to any assignment of this Agreement by either party except as provided hereinabove.

13.8    Notices sent  hereunder  shall  be  sent  first  class  mail,  postage prepaid,  or by express delivery to Company and to Subscriber at their respective addresses and to the person first listed below, or to such other address/person as the party shall provide in writing.

13.9    All parties signing this Agreement expressly represent and warrant that they have the requisite authority to enter into this Agreement on behalf of the party for which they are signing.

13.10 This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall be deemed for all purposes to constitute one and the same instrument.

13.11 Company and its employees, agents and representatives shall not, without Subscriber’s prior written consent in each instance, use in advertising, publicity or otherwise, any trade name, trademark, service mark, symbol or any abbreviation, contraction or simulation thereof owned by Subscriber or its affiliates. Company may disclose in its advertising, marketing materials and press releases that Subscriber uses Company products and services though shall provide copies of such materials to Subscriber before they are published. This Section shall survive termination of this Agreement.

13.12   Indemnification by  Subscriber.    Subscriber shall  indemnify, defend  and  hold Company, its officers, members, managers, shareholders, directors, employees, agents and affiliates (each, a “Company Indemnified Party”) harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys’ fees resulting from or arising out of any claim, suit, action, arbitration or proceeding (“Claim”) brought or threatened by a third party  against  any  Company Indemnified Party relating  to:  (a) a  breach  or  alleged  breach  by Subscriber of any of its representations, warranties, covenants, or obligations hereunder, including, without limitation, failure to comply with applicable laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative, and legislative authorities, (b) Subscriber’s use, misuse, or failure to use the Platform, (c) infringement, misappropriation, or violation of any third party rights (including, without limitation, any intellectual property right, publicity, confidentiality, property, or privacy right), Company Intellectual Property, or the Intellectual Property rights of any third party by Subscriber, (d) any misrepresentation made by Subscriber to Company or any third party, and (e) any violation by Subscriber of Section 8 or any applicable law.

13.13   Indemnification by Company. Company shall indemnify, defend, and hold Client, its officers, shareholders, directors, employees, agents and affiliates (each, a “Subscriber Indemnified Party”) harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys’ fees resulting from or arising out of any Claim brought by a third party against any Subscriber Indemnified Party relating to infringement of any United States patent or copyright by Subscriber’s use of the Platform; provided that, such cost, liability, loss, or expense was not caused, in whole or in part, by an unauthorized change, modification or adaptation of the Platform by Subscriber.  Company may, at its option: (i) secure at its own expense a right for Subscriber to continue to use the Platform; (ii) may replace the Platform with software of comparable type, quality and specifications that does not infringe a third party’s rights; or (iii) immediately terminate this Agreement upon the return to Subscriber of all pre-paid Fees. Company’s obligation to indemnify is conditioned upon Client giving Company prompt notice of any such charge of infringement, allowing Company to control the defense and any settlement negotiations, and cooperating fully in resolving or defending such charges.