Legal and Policy Statements

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ABACUS^® END USER LICENSE AGREEMENT

IMPORTANT-READ CAREFULLY: THIS END USER LICENSE AGREEMENT (“EULA” or “Agreement”) CONTAINS THE ENTIRE AGREEMENT BETWEEN LICENSEE (DEFINED HEREIN) AND BAXA (DEFINED HEREIN) WITH RESPECT TO THE TERMS AND CONDITIONS DESCRIBED HEREIN. READ THIS AGREEMENT CAREFULLY BEFORE YOU CLICK THE “I AGREE” BUTTON. YOU ACKNOWLEDGE THAT (1) YOU ARE AUTHORIZED TO ENTER THIS AGREEMENT FOR AND ON BEHALF OF YOUR COMPANY (“LICENSEE”), AND ARE DOING SO, AND (2) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND THE LICENSEE SHALL BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, CLICK ON THE “I DO NOT ACCEPT” BUTTON BELOW AND INSTALLATION WILL TERMINATE AND LICENSEE MAY RETURN IT FOR A FULL REFUND OF THE LICENSE FEES PAID TO BAXA FOR THE APPLICATION.

1. DEFINITIONS.
“Application” shall mean the version of the Baxa proprietary computer software product, Abacus^® that Licensee has licensed, along with any third party software applications bundled therewith. The Abacus versions are: (i) Abacus SE; (ii) Abacus ME; (iii) Abacus CE; and (iv) Abacus DE.

“Baxa” shall mean (i) Baxa Corporation if Licensee contracted for use of the Application with Baxa Corporation, or (ii) Baxa Ltd. if Licensee contracted for use of the Application with Baxa Ltd.

2. GRANT OF LICENSE. Baxa grants Licensee a non-exclusive license to use the Application, and any associated media, printed materials and electronic documentation within or accompanying the Application (“Documentation”) subject to all the terms and conditions set forth in this EULA. The Application may only be used by Licensee’s employees, and only for Licensee’s own internal use. The terms of this EULA will govern any updates and upgrades provided by Baxa that replace or supplement the original Application, unless such update or upgrade is accompanied by a separate license agreement, in which case the terms of that license agreement will govern. Licensee is not permitted to use the Application in any manner not expressly authorized by this EULA.

3. RESERVATION OF RIGHTS AND OWNERSHIP. Baxa reserves all rights not expressly granted to Licensee in this EULA. The Application is protected by copyright and other intellectual property laws and treaties. All trademarks, service marks, and trade names (collectively the "Marks") are trademarks or registered trademarks of and are proprietary to Baxa, or other respective owners that have granted Baxa the right and license to use such Marks. The Application is provided as a license only and is not sold. No transfer of title is included.

4. USE OF APPLICATION, LIMITATIONS. If Licensee has licensed the Abacus SE or Abacus ME version of the Application, use of the Application is limited solely to processing multi-ingredient solution compounds in connection with Licensee’s use of the Baxa ExactaMix^® 2400 Compounder. If Licensee has licensed the Abacus CE or Abacus DE version of the Application, use of the Application is limited to creating labels. Licensee may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from use of the Application without express written permission from Baxa. Licensee may not rent, lease, lend, redistribute or sublicense the Application. Nor may Licensee use the Application for any purposes other than those expressed herein. Licensee may not transfer any of its rights to use the Application and Documentation to another person or third party.

Licensee may not distribute, or otherwise publish through the Application any content which is libelous, defamatory, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal, or otherwise objectionable, or which may constitute or encourage a criminal offense, violate the rights of any party or otherwise give rise to liability or violate any law.

5. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. Licensee may not modify, reverse engineer, decompile, or disassemble the Application, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

Use of the Abacus SE and Abacus ME versions of the Application is limited by the particular number of workstation(s) at specific physical address(es) for which Licensee has contracted. Any other use is prohibited.

6. TERMINATION. Without prejudice to any other rights, Baxa may terminate this EULA if Licensee fails to comply with the terms and conditions of this EULA. Also, if Licensee has licensed the Abacus DE version of the Application, Licensee’s rights and license to use the Application shall automatically terminate 30 days from installation thereof. In addition, in the event Licensee has leased the Applications, Licensee’s rights and license to use the Application shall automatically terminate upon the expiration or termination of the lease term. In the event of any such termination, Licensee must destroy all copies of the Application and all of its component parts within five (5) days thereof. The provisions of Sections 3, 6, 8, 9, 10 and 11 shall survive any termination of this EULA.

7. USER AND/OR AUTOMATED SYSTEM PARTICIPATION. Baxa does not and cannot review all communications and materials posted to or created by users and/or other automated systems that can possibly access the Application and is not in any manner responsible for the content of these communications and materials. Licensee acknowledges that by providing Licensee with the ability to view and distribute user and/or automated system generated content through the Application, Baxa is merely acting as a conduit for such distribution and is not undertaking any obligation or liability relating to any content or activities generated as a result of use of the Application.

8. DISCLAIMER. Baxa makes no warranties or representations about the accuracy or completeness of content or information generated outside and subsequently transmitted through the Application.

THE APPLICATION, DOCUMENTATION AND THE MATERIALS, INFORMATION, SERVICES, AND PRODUCTS IN THE APPLICATION, INCLUDING, WITHOUT LIMITATION, TEXT, GRAPHICS, AND LINKS, ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BAXA AND THIRD PARTY SUPPLIERS OF THE APPLICATION DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. BAXA DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS APPLICATION OR THE SERVER THAT MAKES THE APPLICATION AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. BAXA DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS IN THE APPLICATION IN TERMS OF THEIR COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE, IN WHICH EVENT THE ABOVE LIMITATIONS WILL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. LIMITATION OF LIABILITY. IN NO EVENT SHALL BAXA BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL, DAMAGES, OR ANY DAMAGES WHATSOEVER, EVEN IF BAXA HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE APPLICATION, AND ANY INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE FROM THE APPLICATON. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE. HOWEVER, IN NO EVENT SHALL BAXA’S TOTAL CUMULATIVE LIABILITY TO LICENSEE FOR ANY AND ALL DAMAGES ARISING HEREUNDER EXCEED THE LICENSE FEES PAID BY LICENSEE TO BAXA FOR THE APPLICATION. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

THE COLLECTIVE LIABILITIES OF BAXA AND ITS THIRD PARTY SUPPLIERS ARE SUBJECT TO THE LIMITATION OF LIABILITIES DESCRIBED IN THIS EULA. THIRD PARTY SUPPLIERS DISCLAIM ALL LIABILITY FOR ALL CONSEQUENTIAL, PUNITIVE, INCIDENTAL, AND OTHER INDIRECT DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST OR DAMAGED DATA, AND THE PROVISION OF SUBSTITUTE GOODS. THE THIRD PARTY SUPPLIERS ARE INTENDED BENEFICIARIES OF THESE LIMITATIONS AND DISCLAIMERS, AND THE LIMITATION OF LIABILITIES FOR BAXA AND ITS SUPPLIERS ARE NOT CUMULATIVE.

10. INDEMNIFICATION. Licensee hereby indemnifies, defends, and holds Baxa, its officers, directors, employees, agents, licensors and suppliers (collectively the "Provider") harmless from and against any and all claims, losses, expenses, damages and costs, including reasonable attorneys' fees, arising from or relating to any violation of the terms and conditions of this EULA or any activity related to Licensee’s use of the Application (including negligent or wrongful conduct), by Licensee or any other person or automated system accessing the Application.

11. APPLICABLE LAWS/GENERAL. This EULA shall be governed by and construed in accordance with the substantive laws (without regard to choice of law provisions) of: (i) the State of Colorado, U.S.A., if Baxa is Baxa Corporation, or (ii) England, if Baxa is Baxa Ltd. The competent courts of Denver County, Colorado when Colorado law applies, and of London, England, when the laws of England apply, shall have the exclusive jurisdiction over all disputes relating to this EULA. This EULA will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

Any cause of action or claim Licensee may have with respect to the Application must be commenced within one (1) year after the claim or cause of action arises. Baxa’s failure to insist upon or enforce strict performance of any provision of these terms and conditions shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these terms and conditions. The terms and conditions of this EULA may only be changed or amended in writing executed by duly authorized representatives of Licensee and Baxa. Baxa may assign its rights and duties under this Agreement to any party at any time without notice to Licensee. If any provision of this EULA is held invalid, illegal or unenforceable, the validity, legality of the remaining provisions of this EULA shall not be in any way affected or impaired. This EULA is the entire agreement between Baxa and Licensee concerning the Application and supersedes all other prior or contemporaneous agreements or communications with respect to the Application and related materials, whether written or oral.

Those who choose to access this Application do so on their own initiative and are responsible for compliance with applicable local laws. Licensee may not use or export the materials in violation of U.S. export laws and regulations.

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