Data Interchange Agreement
This Data Interchange Agreement (“Agreement”) is made effective as of the date below (the “Effective Date”), by and between Associated Pharmacies, Inc, having a principal place of business at 211 Lonnie E. Crawford Blvd, Scottsboro, AL 35769 (“API”), and the pharmacy listed below (“Customer”).
API has agreed to electronically transmit Confidential Information and Transaction Data (as defined herein) via electronic data exchange. “Transaction Data” means electronic data files. For purposes hereof, "Merchandise" shall include prescription drugs, over-the-counter drugs, health and beauty aids and sundries, products and updates thereof, catalogs, invoices. Transaction Data includes any information that may be (i) disclosed at any time to Customer by API or its personnel in anticipation of, in connection with or incidental to the Agreement; (ii) processed at any time in connection with or incidental to the Agreement; or (iii) derived from the information described in (i) and (ii) above, notwithstanding whether the information has been classified or marked by API as “Confidential Information” or “Transaction Data”. Depending on the intended usage, Transaction Data may be provided in either paper or electronic formats.
1. DEFINITIONS. Except as otherwise stated herein, capitalized terms used in this Agreement will have the meanings set forth herein.
2. CUSTOMERS. Each Customer that has access to or uses the Transaction Data must be a current API account.
3. CONFIDENTIALITY AND PROPRIETARY RIGHTS.
Use and Disclosure of Confidential Information. Each party may disclose to the other party certain valuable confidential and proprietary information to the other party. The term “Confidential Information” means any information and materials, whether in oral, written, graphic or electronic form regarding the existence of this Agreement and the terms and conditions thereof and all proprietary information, data, including Transaction Data, trade secrets, business information, technical, marketing, financial, personnel, planning, and other information that a party discloses to the other party or to which a party obtains access in connection with the negotiation and performance of this Agreement and any information that is marked confidential or which the receiving party should reasonably known to be confidential. Confidential Information will not include: (a) information lawfully obtained or created by the receiving party independently of the disclosing party’s Confidential Information without breach of any obligation of confidence, or (b) information that enters the public domain without breach of any obligation of confidence.
(a) Except as expressly permitted by this Agreement, Customer will not disclose API Confidential Information to any other person or use API Confidential Information for any purpose other than performing its obligations under this Agreement. Customer will use all reasonable care in handling and securing API Confidential Information and will employ all security measures used for its own proprietary information of similar nature.
(b) Period of Confidentiality. The restrictions on use, disclosure and reproduction of Confidential Information set forth in Section 3(a) will, with respect to Confidential Information that constitutes a “trade secret” (as that term is defined under applicable law), be perpetual, and will, with respect to other Confidential Information, remain in full force and effect during the term of this Agreement and for three years following the expiration or termination of this Agreement.
(c) Injunctive Relief. The Customer agrees that the breach, or threatened breach, of any provision of this Section 3 may cause irreparable harm without adequate remedy at law. Upon any such breach or threatened breach, API will be entitled to injunctive relief to prevent the other party from commencing or continuing any action constituting such breach, without having to post a bond or other security and without having to prove the inadequacy of other available remedies. Nothing in this Section 3(c) will limit any other remedy available to either party.
(d) Retained Rights. Customer rights in the Transaction Data will be limited to those expressly granted in this Agreement. API reserves all trademarks and trade secrets not expressly granted to Customer. All changes, modifications, improvements or new content made or developed with regard to the Transaction Data, whether or not (a) made or developed at Customers request, (b) made or developed in cooperation with API, or (c) made or developed by API expressly for Customer, will be solely owned by API. Customer acknowledges that the Transaction Data contains trade secrets of API. API retains title to all material, originated or prepared for Customer under this Agreement.
4. INDEMNIFICATION. API and Customer agree to indemnify, defend, and hold harmless the other from all claims, including third party claims, and liabilities, damages, losses, and expenses, including without limitation reasonable attorney’s fees, incurred by either API or Customer, arising out of or in any way connected with: (i) API’s or Customer’s negligent use or willful misuse of the Transaction Data, (ii) any unauthorized access to the Transaction Data through API’s or Customer’s websites, (iii) API’s or Customer’s breach of any privacy, confidentiality or security obligation contained in this Agreement, (iv) any claim that API’s or Customer’s Transaction Data or other API or Customer materials infringe any patent, copyright or other intellectual property rights or incorporates any misappropriated trade secrets.
5. LIMITATIONS OF LIABILITY.
IN NO EVENT WILL API BE LIABLE UNDER THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT API HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGE.
6. SECURITY COMPLIANCE. Customer agrees to comply with the security requirements set forth in this Agreement and all provisions of API security procedures as are pertinent to API operations or otherwise made available or conveyed to Customer by API from time to time (“Security Policies”).
7. TERM AND TERMINATION.
(a) Term. This Agreement will commence on the Effective Date and will continue in full force, unless earlier terminated in accordance with the terms of this Agreement.
(b) Termination for Convenience. API or Customer may terminate this Agreement without cause, at any time by providing at least thirty (30) days prior written notice to other party.
(c) Termination for Cause. API may terminate this Agreement immediately by notice to the Customer if: (i) Customer breaches any material term of this Agreement; (ii) Customer announces a cessation of its entire business; elects to dissolve and wind-up its business, makes a general assignment for the benefit of creditors or petitions for or appoints (or a third party causes to be appointed for such party) a receiver, custodian or trustee to take possession of all or substantially all of Customer property; or (c) any representation or warranty made herein by Customer is false or misleading in any material respect as of the date on which it was made or becomes false or misleading in any material respect at any time thereafter.
(d) Obligations After Expiration or Termination. Upon the expiration or termination of this Agreement for any reason Customer will: (i) promptly cease using all Transaction Data (ii) destroy or return to API all copies (including partial copies) of the Transaction Data, and deliver to API written certification of an officer of Customer that Customer has complied with its obligations in this Section 7(d).
(e) Survival of Provisions. Those provisions of this Agreement that, by their nature, are intended to survive termination or expiration of this Agreement will remain in full force and effect, including, without limitation, the following Sections of this Agreement: 3 (Confidentiality and Proprietary Rights), 4 (Indemnification), 5 (Limitation of Liability), 6 (Security Compliance), 7(d) (Obligations after Expiration or Termination), 7(e) (Survival of Provisions), and 8 (Governing Law) – 15 (Entire Agreement).
8. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of Alabama, exclusive of its rules governing choice of law and conflict of laws. Any dispute, legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Scottsboro, Alabama, and the Parties hereby irrevocably consent to the personal and exclusive jurisdiction and venue therein.
9. ASSIGNMENT AND SUBCONTRACTING. Customer will not assign, subcontract, transfer, or otherwise dispose of, in whole or in part, any of its interests, rights, or obligations under this Agreement without API prior written consent, and any attempt to do so shall be void and without further effect. API may assign any and all of its rights and obligations under this Agreement to any affiliate of or successor to API.
10. NOTICES. All notices and other communications required or permitted under the Agreement will be in writing and shall be deemed to have been duly given: (a) when delivered by hand; (b) three (3) days after being sent by Registered or Certified U.S. Mail, return receipt requested and postage prepaid; or (c) one (1) day after deposit with a nationally recognized overnight delivery or express courier service. In each case, notice will be sent to the addresses and to the attention of the individuals set forth on the signature page herein (or to such other individuals or addresses as a party may designate by notice).
11. NO WAIVER. No delay, failure or waiver of either Party’s exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. Any waiver by either Party of any provision of this Agreement will not imply a subsequent waiver of that or any other provision of this Agreement. The remedies under this Agreement will be cumulative and are not exclusive. Election of one remedy will not preclude pursuit of other remedies. Other than those remedies specifically disclaimed in this Agreement, all remedies set forth in this Agreement will be in addition to all other remedies available under this Agreement or at law or in equity.
12. SEVERABILITY. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby.
13. AMENDMENTS. This Agreement may only be amended by API upon 30 days prior written notice by API to Customer and in accordance with API’s Articles of Incorporation and Bylaws.
14. COUNTERPARTS. This Agreement may be executed by API in one or more counterparts, including counterparts transmitted by facsimile and scanned images transmitted by email, and each of which shall be an original but all such counterparts will constitute one and the same instrument.
15. ENTIRE AGREEMENT. This Agreement, the Schedules and the documents incorporated herein, is the final, full and exclusive expression of the agreement of the parties and supersedes all prior agreements, understandings, writings, proposals, representations and communications, oral or written, of either Party with respect to the subject matter hereof and the transactions contemplated hereby.
IN WITNESS WHEREOF, API and Customer have each caused this Agreement to be executed by its duly authorized representatives as of the Effective Date, and such execution evidences each party’s acceptance of and agreement with the terms and conditions set forth herein.
If to Customer: use address specified below
If to API: Associated Pharmacies, Inc. 211 Lonnie Crawford Blvd. Scottsboro, AL 35769 Attn: Clint King