PetDesk® Subscriber Terms of Service
Effective Date: November 30, 2023
SOFTWARE AS A SERVICE AGREEMENT
This Software as a Service Agreement (the “Agreement”) governs your and your organizations’ (collectively, “Customer”) access to and use of the Services (as defined below) offered or made available by PetDesk, LLC, (the “Company”), also referred to as “our” “us” and “we”) or on its behalf by Company’s Affiliates. This Agreement applies to all Company Services. Some Services are accessible at www.petdesk.com and dashboard.petdesk.com (collectively, the “Site”). Company may, from time to time, in its discretion, modify this Agreement by posting updated terms on its Site. Customers will receive a notification through the platform when this Agreement is updated at www.petdesk.com. Company and Customer shall herein be referred to each as a “Party” and collectively as the “Parties”. In all cases, Customer hereby acknowledges and agrees that Customer’s use of or access to the Services will be (and is deemed to be) acceptance of and agreement to the terms and conditions set forth in this Agreement. If Customer does not agree to or accept any of the terms or conditions below, Customer should not access or use the Services.
In consideration of the mutual promises and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- Affiliates means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
- Aggregated Data means Customer Data that is (i) anonymized, and not identifiable to any person or entity, or (ii) combined with the data of other customers or additional data sources and presented in a manner from which Customer’s or Authorized Users’ identity may not be derived.
- Customer Data means all Data made available by Customer or its Users to Company or transmitted via the Company Services or otherwise provided by Customer or its Users in connection with the provision of the Services.
- Data means text, images, materials, photos, audio, video, and all other forms of data or communication.
- Documentation means the documentation for the Subscription Services generally supplied by Company to assist its customers in the use of the Subscription Services, including user manuals and other written materials.
- Feedback means any Customer provided feedback and reports about any errors, problems, or defects in, or suggestions for changes and improvement to the Subscription Services.
- Intellectual Property Rights means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States, the European Union, or any other state, country or jurisdiction.
- Order Form means each Company order form, statement of work or similar document signed by duly authorized representatives of both Parties which references this Agreement, identifies the specific Services ordered by Customer from Company, sets forth the prices for the Services and contains other applicable terms and conditions. Typically, each Order Form shall be in the form attached hereto as Exhibit A.
- Professional Services means configuration, implementation, training, consulting, and/or custom services to be provided by Company. All Professional Services will be set forth in an Order Form.
- Company Data means all Data made available by Company to Customer in connection with Customer’s use of or access to the Site or Subscription Services.
- Services means the Subscription Services, Professional Services, and Support Services, collectively as applicable, provided by Company to Customer pursuant to this Agreement.
- Subscription Services means Company’s proprietary subscription-based software solution(s) and accompanying products, including Company’s platform(s), and client-facing mobile application(s) (“App(s)”), asset forth and described on the applicable Order Form. For the avoidance of doubt, Customer shall only receive the Subscription Services purchased pursuant to an Order Form.
- Support Services means maintenance support services for the Subscription Services. All Support Services will be set forth in an Order Form.
- Third-Party Applications means online, Web-based applications or services and offline software products that are provided by third parties and interoperate with the Subscription Services.
- Users mean individuals who are authorized by Customer to use the Services, and, with respect to the Subscription Services, who have been supplied passwords by Customer (or by Company at Customer’s request). Users consist of any employee of Customer or its Affiliates and any independent contractor of Customer or its Affiliates.
2. ORDER FORM
2.1. Order Form. Company shall provide Customer with the specific Services specified on an Order Form which may be provisioned by Company or any of its Affiliates. Any conflict between the terms and conditions set forth in this Agreement and any Order Form shall be resolved in favor of the Order Form. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Company regarding future functionality or features.
2.2. Affiliates Not Under Direct Order Form. Subject to the terms of the Order Form and this Agreement, Customer may make the Services available to its Affiliates provided that: (a) all licensing restrictions are complied with in each instance by each such Affiliate, (b) such Affiliates are bound by obligations as protective of Company as this Agreement for the benefit of Company, and (c) the Affiliate and Company do not have a separate, pre-existing agreement in place for the Services. Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates, except where the Affiliate has signed its own Order Form with Company for the Services pursuant to Section 2.3.
2.3. Affiliates Under Direct Order Form. In addition to Section 2.2, Customer’s Affiliates may acquire Services subject to the terms and conditions of this Agreement by executing Order Forms hereunder directly with Company; provided, the Affiliate and Company do not have a separate, pre-existing agreement in place for the Services. Each Order Form executed by an Affiliate hereunder shall incorporate the terms of this Agreement by reference and be deemed to be a two-party agreement between Company and such Affiliate. Each Affiliate executing an Order Form shall be solely responsible for its obligations pursuant to such Order Form as well as for the obligations to be performed pursuant to this Agreement and the liabilities arising out of this Agreement as if it was the named party instead of Customer. Customer shall have no obligations or liabilities as to such Order Form signed by its Affiliate and Company shall look solely to the Affiliate executing such Order Form.
3. FEES; PAYMENT TERMS
3.1. Fees. Customer agrees to pay Company for Services provided and expenses incurred in accordance with and at the rates specified in each Order Form. Unless otherwise set forth on the Order Form, payment shall be due within thirty (30) days after receipt of Company’s invoice. Customer agrees to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all overdue amounts not subject to a good faith dispute.
3.2. Third Party Costs; Additional Features. Charges or fees for any third party costs or expenses, or increases of third party costs (e.g. Company increases in postage cost for sending postcards for Customer) will be borne by Customer. In addition, Company may add additional functionality (for example, via features or improved modules) to the Subscription Services, which will be subject to additional fees. Customer may elect in its discretion to receive or decline any such new functionality.
3.3. Taxes. Fees are exclusive of taxes. Customer shall be responsible for the payment of all sales, use, value added tax, and similar taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Company and any taxes or obligations imposed upon Company under federal, state and local wage laws.
4. CUSTOMER RIGHTS AND OBLIGATIONS
4.1. License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, Company hereby grants to Customer, solely during the term of the applicable Order Form, a limited, non-exclusive, non-transferable license to access and use the Subscription Services in accordance with this Agreement and the applicable Documentation. This license is restricted to use by Customer and its Users and does not include the right to use the Subscription Services on behalf of any third party.
4.2. Customer Guidelines and Responsibilities. Customer agrees and understands that: (a) it is responsible for all activity of Users and for Users’ compliance with this Agreement; (b) it shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (ii) prevent unauthorized access to, or use of, the Subscription Services, and notify Company promptly of any such unauthorized access or use; and (iii) comply with all applicable laws and/or regulations in using the Subscription Services; (c) the Subscription Services shall not include Customer’s connection to the Internet or any equipment or third party licenses necessary for Customer to use the Subscription Services, which shall be Customer’s sole responsibility; (d) it is responsible for supplying Company with any technical data and other information and authorizations that Company may reasonably request to allow Company to provide the Subscription Services to Customer; and (e) Company shall have the right to: (i) use or act upon any Feedback provided by Customer without restriction and without obligation to Customer; (ii) utilize information collected regarding Customer’s use of the Subscription Services (1) maintaining, improving and/or analyzing the Subscription Services, including providing advanced analytics and reporting to Customer, (2) complying with all legal or contractual requirements, and/or (3) making malicious or unwanted content anonymously available to its licensors for the purpose of further developing and enhancing the Subscription Services; and (iii) develop and commercialize benchmarks and measures based on Aggregated Data.
4.3. Restrictions. Customer and its Users (a) shall not (i) modify, copy, display, republish or create derivative works based on the Subscription Services; (ii) reverse engineer the Subscription Services; (iii) access or use the Subscription Services to build a competitive product or service, or copy any ideas, features, functions or graphics of the Subscription Services; (iv) use the Subscription Services in any way prohibited by applicable law or that would cause either party to violate applicable law including but not limited to: (1) sending spam or other duplicative or unsolicited messages; (2) using the Subscription Services to send infringing, obscene, threatening, libelous, or other unlawful material; (3) using the Subscription Services to access blocked services; or (4) uploading to the Subscription Services or using the Subscription Services to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (v) use the Subscription Services to run automated queries to external websites; (vi) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vii) attempt to gain unauthorized access to the Subscription Services or its related systems or networks; (viii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Subscription Services; (ix) perform penetration or load testing on the Subscription Services; or (x) without the express prior written consent of Company, conduct any public benchmarking or comparative study or analysis involving the Subscription Services; and (b) agree (i) to use the Subscription Services solely for its internal business purposes; (ii) to only permit access to the Subscription Services by Users; (iii) to not access or use the Subscription Services from a prohibited location in violation of U.S. trade and economic sanctions; and (iv) that Company is not responsible for the contents and/or accuracy of any materials of Customer uploaded or transmitted through the Subscription Services.
4.4. Customer Equipment and Systems. Customer must provide and maintain equipment and ancillary services needed to connect to, access or otherwise use the Services, which may include, without limitation, modems, mobile communication devices, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). In all cases, Customer has and will retain sole responsibility for (i) Customer’s information technology infrastructure, including, without limitation, computers, software, databases, electronic systems (including, but not limited to, database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”), and (ii) all access to and use of the Services directly or indirectly by or through the Customer Systems or its Customers’ access credentials, including, without limitation, all results obtained from, and all conclusions, decisions and actions based on, such access or use. Customer represents and warrants that at all times during the term it will (a) set up, maintain and operate in good repair all Customer Systems on or through which the Services are accessed or used and (b) provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations under and in connection with the Agreement.
4.5. Customer Data. Company is, under no circumstances, responsible for the contents and/or accuracy or legality of Customer’s messages to Clients and Company will only transmit such messages on a basis of good faith that Customer uses the Services in accordance with the Agreement. Customer is solely responsible for providing the content of all messages initiated by Customer through the Services and Apps. Customer hereby represents and warrants that: (a) it has obtained all necessary consents from its clients for Company to send communications to clients on behalf of Customer through the Subscription Services; (b) it will obtain all requisite consents necessary to use the Customer Data via the Subscription Services, including any verification and authentication of Customer or its clients; (c) it will not send communications to any persons after receipt of an opt-out request from such person, except to confirm the opt-out request in compliance with applicable law, and (d) it is not permitted to and will not send or share any content via the Services promoting, offering or regarding cannabis at any time and doing so is a material violation of this Agreement. Company will not be liable for any misuse of the Services by Customer. Company is not responsible for the views and opinions contained in any of Customer’s messages.
4.6. Suspension. Company reserves the right to suspend Customer’s access to the Subscription Services if Company reasonably determines that: (a) Customer’s use of the Subscription Services represents an imminent threat to Company’s network; (b) Customer has violated any of its obligations under Section 4.5 above; (c) the security or proper function of the Subscription Services may be compromised due to hacking, denial of service attacks or other activities of a similar nature; or (d) Customer’s continued use may violate any applicable law or third-party rights. To the extent reasonably practicable given the nature of the issue giving rise to the suspension, Company will promptly: (i) notify Customer of such suspension in writing, and (ii) reinstate the suspended Subscription Services after the issue is abated.
4.7. Third-Party Applications. Unless otherwise set forth in an applicable Order Form: Company may make available Third-Party Applications that operate, interface or are delivered with the Services. Customer shall enter into a separate agreement with any such applicable third-party vendor prior to accessing and using such Third-Party Applications. Use of such Third Party Applications will be governed by such third party’s terms and conditions. PETDESK DOES NOT WARRANT, AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO, THIRD-PARTY APPLICATIONS, WHETHER OR NOT THEY ARE DESIGNATED BY PETDESK AS “VERIFIED” OR OTHERWISE, AND PETDESK DISCLAIMS ALL LIABILITY FOR SUCH THIRD-PARTY APPLICATIONS.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. Services. All rights and title in and to the Services, Documentation, and Company Data, including all improvements, extensions, enhancements, derivatives or modifications thereto, any result from the provision of such, and Intellectual Property Rights relating to any of the foregoing, belong exclusively to Company and its licensors (except as expressly set forth in Section 13.3 (a) below). No rights are granted to Customer other than as expressly set forth in this Agreement and all rights are hereby reserved.
5.2. Customer Data. All rights and title in and to Customer Data belong to Customer or its licensors. Subject to the foregoing, Customer herby grants Company an unlimited, irrevocable, perpetual, nonexclusive, sublicensable (through multiple tiers), worldwide, fully-paid up, royalty-free and transferable license to display, improve exploit, manipulate, extract, transform or otherwise use any Customer Data or other data submitted by Customer to the Subscription Services for the purposes of facilitating the delivery of the Subscription Services to Customer, Company’s internal and external business purposes (including, without limitation, marketing or other communications), or for any other purpose determined by Company. Company may retain Customer Data indefinitely or as it otherwise determines. Irrespective of the availability of any Customer Data or data available for download, Customer is solely responsible for maintaining and keeping backup copies of all Customer Data. To the extent permitted by applicable law, Company is not responsible for and hereby disclaims any and all liability for any lost Data or corrupted Data concerning or relating to any Customer Data, other Customer Data on the Subscription Services.
5.3. License to Customer IP. To facilitate white labeling, if and where applicable to the Services, Customer hereby grants to Company a non-exclusive, worldwide, royalty-free, fully paid up right and license to use any and all logos, designs, trademarks, content, data, videos, and ideas provided by or on behalf of Customer to “white label” messages sent by Customer to its clients via the Services. This limited license shall expire upon the termination of the Agreement subject to Company’s retention of any messages or materials for archival purposes.
6.1. Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. The receiving Party shall hold in confidence, and shall not disclose (or permit its personnel to disclose) any Confidential Information to any person or entity except to directors, officers, employees, outside consultants, or advisors (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than the terms of this Section 6. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another party without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own proprietary information of a similar nature and sensitivity, but in no event shall less than reasonable care be used. The Parties expressly agree that the terms and pricing of this Agreement are Confidential Information and Customer further agrees that it shall not use the Services for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the Services and will not publicly post any analysis or reviews of the Services without Company’s prior written approval. A receiving Party shall, to the extent legally permissible, promptly notify the disclosing Party upon any request for disclosure of Confidential Information by a valid order of a court or other governmental body having jurisdiction and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights (at the disclosing Party’s expense). In any event, the receiving Party shall make such disclosure only to the extent required and shall use reasonable efforts to ensure that confidential treatment is afforded to any such Confidential Information so disclosed.
6.2. Exclusions. Information will not be deemed Confidential Information hereunder if such information: (a) becomes publicly known or otherwise publicly available, except through a breach of this Agreement by the receiving Party; (b) is known prior to receipt from the disclosing Party or becomes known thereafter, in each case on a non-confidential basis; or (c) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
6.3. Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any disclosure or use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to seek an injunction to restrain such use in addition to other appropriate remedies available under applicable law.
6.4. Prior Agreements. This Section 6 supersedes all prior agreements, proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating to each Party’s obligations with respect to Confidential Information.
7.1. Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
7.2. Subscription Services Warranty. Company warrants that: during the term of any Order Form for the Subscription Services the Subscription Services will conform, in all material respects, with the Documentation. If Customer believes the warranty stated in this Section has been breached, Customer must notify Company of the breach no later than thirty (30) days following the date of becoming aware of that the warranty was allegedly breached, and Company will promptly correct the non-conformity at its own expense if a breach of this warranty occurred. Such warranty shall only apply if the Subscription Services has been utilized by Customer in accordance with the Order Form and this Agreement.
7.3. Professional Services Warranty. Company warrants that any Professional Services provided hereunder shall be provided in a competent and professional manner and in accordance with any specifications set forth in the Order Form in all material respects. If the Professional Services are not performed as warranted, then, upon Customer’s written request, Company shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to Customer. Such warranties and other obligations shall survive for thirty (30) days following the completion of the Professional Services.
7.4. Support Services Warranty. Company shall provide the Support Services and warrants that the Support Services, will be performed in a professional manner in accordance with industry standards for like services. Company may, from time to time, in its discretion, engage third parties to perform operational support or other related services to Company related to the Services.
7.5. Availability. Where applicable to the Subscription Services purchased, Customer acknowledges and agrees that the technology and platforms are run by software that is designed to be active 24 hours per day, 365 days per year, subject to schedule maintenance; however, software in general is not error-free and the existence of any errors in Company software or technology used to deliver the Subscription Services or the failure to achieve such activity shall not constitute a breach of the Agreement. In the event that Company discovers a material error or problem with Customer’s Equipment or Customer Systems or other interface which substantially affects Customer’s use of the Subscription Services purchased by Customer, Company shall use reasonable measures to restore access to Customer’s service, provided that such error or problem has not been caused by incorrect use, abuse or corruption of the Subscription Services software or by improper use of the Subscription Services by Customer with other software or on Equipment which it is incompatible, or by a third party or unauthorized person accessing the service through Customer’s passcodes or access credentials.
7.6. Warranty Remedies. The remedies stated in this Section 7 are Customer’s sole remedies, and Company’s sole obligation, with respect to Services that fail to comply with the foregoing warranties.
7.7. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. PETDESK EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR THAT THE SERVICES WILL BE ERROR-FREE.
8.1. Company Indemnification. Subject to Section 8.3 below, Company will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Subscription Services infringe or misappropriate such third party’s Intellectual Property Rights (a “Claim Against Customer”), and will indemnify Customer from any damages (including reasonable attorney fees and costs) finally awarded against Customer as a result of, or for amounts paid under a court-approved settlement of, a Claim Against Customer. If a Claim Against Customer is brought or is likely, in Company’s sole opinion, to be brought, Company will, at its option and expense: (a) obtain the right for Customer to continue using the Subscription Services; (b) replace or modify the Subscription Services so it becomes non-infringing; or (c) upon notice to Customer, terminate this Agreement or Customer’s use of the Subscription Services, provided that in the case of (c), Company promptly refunds to Customer the prorated portion of any unearned pre-paid subscription fees paid hereunder for the Subscription Services. Company’s obligations in this Section 8.1 do not cover third party claims to the extent such claims arise from: (i) any products, services, technology, materials or data not created or provided by Company (including without limitation any Customer Data), (ii) any part of the Subscription Services made in whole or in part in accordance to Customer specifications, (iii) any modifications to the Subscription Services made after delivery by Company, (iv) any combination of the Subscription Services with other products, processes or materials not provided by Company (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Subscription Services is not strictly in accordance with this Agreement or any other Documentation.
8.2. Customer Indemnification. Subject to Section 8.3 below, Customer will defend and hold harmless Company and its Affiliates, officers, directors, employees, agents, successors and assigns (collectively, the “Company Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of Company Indemnitees by a third party: (a) alleging that Customer Data, or any use thereof by Company violates rights or interests of a third party (including Customer’s clients) or alleging that Customer Data, or any use thereof, infringes the Intellectual Property Rights of others, or has caused harm to a third party; (b) arising out of or attributable to Customer’s breach of Section 4.3 above; or (c) arising out of or attributable to Customer’s misuse of the Subscription Services (each, a “Claim Against Company”). Customer will indemnify Company Indemnitees from any damages, reasonable attorney fees and costs finally awarded against Company Indemnitees as a result of, or for any amounts paid under a court-approved settlement of a Claim Against Company.
8.3. Indemnification Procedure. Each Party’s obligation to indemnify the other Party is conditioned on the Party seeking indemnification: (a) promptly notifying the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby; (b) allowing the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement, provided that the indemnifying Party shall not settle any claim that requires the indemnified Party to admit fault or subjects the indemnified Party to ongoing obligations without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed); and (c) giving the indemnifying Party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.
8.4. Sole Remedy. This Section 8 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this Section.
9. LIMITATION OF LIABILITY
9.1. Waiver of Consequential Damage. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES OF ANY KIND, OR ANY LOST PROFITS OR LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9.2. Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID OR PAYABLE TO PETDESK UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY FOR THE APPLICABLE SERVICES.
10.1. Term. This Agreement will commence on the Effective Date and will continue in effect until otherwise terminated in accordance with Section 10.2 below. The term of each Order Form for the Services shall be set forth on the Order Form. Company reserves the right to change the rates, applicable charges and usage policies and to introduce new charges, for such Order Form upon providing Customer with written notice thereof (which notice may be provided by e-mail).
10.2. Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form (i) immediately in the event of a material breach of this Agreement or any such Order Form by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing. Termination of any Order Form shall not be deemed a termination of this Agreement. Termination of this Agreement shall, however, terminate all outstanding Order Forms. Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, provided that at such time there are no Order Forms then currently outstanding and in effect. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form.
10.3. Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form, Company shall no longer provide the applicable Services to Customer, and Customer shall immediately cease and cause its Users to promptly cease using the Services. If the Order Form is terminated for any reason other than as a result of Company’s material breach, refunds will not be provided and Company shall be entitled to all of the Fees due under the applicable Order Form for the entire term of the relevant Order Form.
11. DATA PROTECTION AND PRIVACY
11.1. Scope. This Section 11 applies to all personal data (as defined under applicable laws) processed by the Subscription Services on behalf of Customer or otherwise provided by Customer to Company in connection with this Agreement (“Personal Data”). For purposes of this Agreement, if and where applicable, Company is a “processor” that processes certain Personal Data on behalf of Customer, who is the “controller.”
11.3. Customer Responsibilities. Customer’s instructions to Company for the processing of Personal Data shall comply with all applicable data protection laws. Customer will have sole responsibility for the accuracy, quality, and legality of Personal Data upon delivery by Customer to Company and the means by which Customer acquired Personal Data. Customer shall ensure that it is entitled to transfer the Personal Data to Company so that Company may lawfully use, process and transfer the Personal Data in accordance with this Agreement on Customer’s behalf.
12.1 Guidelines. Customers will agree to follow AVMA veterinary guidelines for their veterinary practice and application of Telemedicine (as defined). Those Customers using any part or portion of Company’s Services to provide telemedicine to clients, must have a valid license to practice veterinary medicine that is current and licensed in the state in which the practice is located. Company does not hold a valid license and does not practice veterinary medicine and will not interfere with, influence or prevent Customer’s use of telemedicine and does not endorse or support advice or diagnosis provided between a Customer and a client. Customers will be liable and responsible for all medical advice, diagnosis or professional opinions provided to clients. “Telemedicine” for purposes of this Agreement means a product or service that allows a veterinary clinic the ability to synchronously or asynchronously discuss a pet’s health through mediums such as SMS two-way text messaging (which may contain photos or videos), live video or chat, provided by a third-party partner/vendor that virtually connects Customer to the client.
12.2 Third Party Providers. Access to third-party telemedicine entities or providers may be made available through the Company App at the request of the Customer. However and notwithstanding the foregoing, Company does not support, endorse or have an affiliation with any third-party telemedicine entities or providers whatsoever and any use or access to such by Customer or on its behalf is at its sole and own risk.
13. SPECIFIC TERMS FOR SERVICES PURCHASED.
13.1 Services Applicable to PetDesk. The following terms and conditions apply to the Services provisioned by Company and its associated client-facing Apps:
(a) Company only warrants that communications are processed correctly and further transmitted by Company to the applicable downstream network. Company is not responsible for the final delivery of any communication initiated by Customer through the Services or its platform, as this is out of Company’s control and is the responsibility of downstream communications carriers. Company transmits and receives live video, videos, pictures, files, voice, SMS, and MMS messages via other major telecommunications companies and mobile network operators, and thus Company’s influence over the timing of the transmission of Customer’s messages is subject to the technical constraints imposed upon Company. While Company will use commercially reasonable efforts to transmit Customer’s messages and broadcasts to the applicable network for final delivery to Customer’s designated clients as quickly as possible, Company cannot commit to, and does not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various parties involved in the transmission of Customer’s messages across the public switched telephone network and/or Internet. Customer hereby understands and acknowledges that communications carriers assign messages with a default lifetime and any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the relevant communications carrier without any notice. Company is not liable for any loss incurred by the failure of a message to be delivered, and Customer acknowledges that Company has no liability whatsoever for any damages for financial or other loss resulting from any delivery failure whatsoever.
13.2 Services Applicable to the Kontak Services. The following terms and conditions apply to the Services provisioned by Company’s Affiliate Kontak:
(a) Regulatory Activity and Fees. Fees and rates are subject to the imposition of regulations, modification of existing regulations, or new interpretation, application or enforcement of, or exercise of authority related to, any regulation or finding of any federal, state, and/or local regulatory agency, legislative body, or court of competent jurisdiction, including, without limitation, the imposition of any charges (such as USF charges), surcharges, and/or taxes in reliance on, or as a result of, the same (collectively, “Regulatory Activity”). Company reserves the right, at any time, to pass through to Customer all or a portion of any costs or fees associated to any Regulatory Activity or to modify the fees and rates to reflect the actual cost impact of such Regulatory Activity, including, without limitation, the actual cost impact of any actions by third parties in connection with such Regulatory Activity.
(b) Customer will NOT and will not permit any of its users or clients to, (otherwise a per minute fee for excessive use at the then-current rates established by Company will apply and be added to the fees):
- distribute, transmit, receive, use or store any information or material that is in violation of any local, state, or federal laws and regulations or that may adversely affect the Services or other Company customers;
- Use the Services for any type of use or activities relating to third party call centers, resellers, third party fax messaging services, third party telemarketing firms, or for use by a third party without live dialog, such as transcription services, intercom or monitoring services;
- Use the Services in violation of any third party provider or network rules, terms and policies;
- Use the Services for POTS line for any fire alarm system or security system (any such use or reliance is a serious violation of this Agreement for which Company is not and will not be responsible);
- Use or cause any unauthorized or excessive use of the Services which may cause extreme network capacity or congestion issues, including but not limited to:
- spamming or blasting (e.g., sending one hundred (100) or more bulk and/or junk voicemail or faxes simultaneously),
- bulk call-in lines (e.g., sales call centers, “hotlines,” 900 numbers, sports-line numbers, etc.), or
- auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place outbound call.
(c) DID Telephone Numbers. Company will use commercially reasonable efforts to make available to Customer all reasonably requested Direct Inward Dialing (DID) Telephone Numbers if and to the extent Company has access to such numbers. However, Customer hereby understands and acknowledges that it is the Customer’s responsibility to test the numbers assigned to Customer prior to allowing usage by the Customer or the Customer’s end user.
(d) Telemarketing Traffic. Customer cannot terminate this Agreement or any Order Form because of telemarketing traffic or any fax broadcasts, including any traffic that would violate the Telephone Consumer Protection Act (“TCPA“), which prohibits the sending of advertisements via facsimile or telephone or text without the prior consent of the recipient.
(e) Single Number Complaint. If Customer experiences a single number complaint or a single end user complaint and such complaint is referred to Company, Company will perform reasonable efforts to isolate the problem. Company will not perform any alternate routing of egress trunks based upon a single number or single end user complaint. However, Company will use commercially reasonable efforts to attempt to find if the problem correlates across multiple customers to perform any necessary corrective actions, to the extent it is under Company control.
(f) IP Endpoints: Customer represents and warrants that all traffic Customer delivers to Company for termination is originated on IP-based endpoints, such as VoIP-enabled on premises PBX, Digital or Analog VoIP Gateways, Digital or Analog Telephone Adapters and similar voice packet producing devices. Customer understands and acknowledges that Company will rely upon such representation to assign local telephone numbers to Customer and/or route Customer’s traffic for termination as local calling.
(g) Traffic Control By Customer. In addition to any other term and conditions of this Agreement, Customer shall screen, and block calls destined to (a) invalid single numbers, (b) unassigned numbers or (c) numbers with invalid formats.
(h) Customer shall manage and correct, as necessary, any fraudulent or illegal calling patterns or calling patterns perceived as fraudulent or that may harm or adversely affect Customer, Company or its network. If Customer fails to comply with the requirements described above, Company shall have the right (but not the obligation) to take protective action against Customer to protect Company’s egress network. Protective action may include, without limitation, the temporary blocking of Customer’s traffic until the applicable problem is resolved (at Company’s discretion).
(i) Equipment Purchase Pass-through. Company may, but is not obligated, to offer to purchase some of the equipment needed by Customer, as agreed by the parties under an Order Form. In such a case, Customer will be required to pre-pay for such equipment. Upon receipt of the applicable payment, Company will work with Customer to deliver the equipment to the agreed facilities, at which time, title, ownership and all responsibility regarding such equipment will be with and assumed by Customer. Company will use commercially reasonable efforts to pass through any warranties or rights provided from the supplier regarding such equipment to Customer, but Company is not and will not be responsible for such equipment, whatsoever, after deliver of such to Customer.
13.3 Services for WhiskerCloud Webpage Management and Development. The following terms and conditions apply to the Services provisioned Company’s Affiliate WhiskerCloud:
(a) Assigned IP. Provided all fees have been paid, Company assigns to Customer the logo and media files and copy which are unique to Customer and specifically created by Company under an Order Form for Customer as “works made for hire” (the “Assigned IP”). However, nothing in the preceding sentence or otherwise shall be deemed to grant Customer or any other person any rights or interest in or to any Company information, technology, platforms, website, programs, software, methodologies, or processes developed or used to provision and support the Services or customization of the Customer website or to any Intellectual Property Rights related thereto, and all rights or interests not expressly granted by Company under this Agreement are hereby reserved.
(b) Acceptance. For any Professional Services provided, Customer shall be required to provide timely assistance and cooperation to facilitate the Professional Services. At times, deliverables will be created pursuant to the terms in an Order Form (“Deliverables”), and such Deliverables will be considered accepted the earlier of: (i) when Customer provides Company written notice of acceptance, or (b) ten (10) days after delivery of the Deliverable, if in either case Customer has not first provided Company with written notice of rejection, (“Acceptance”). Customer may reject a Deliverable only in if the Deliverable materially deviates from its specifications and requirements listed in the Order Form provided Customer sets forth in reasonable detail via written notice the nature of such deviation. In such a case, and unless Company disputes the rejection, Company shall use reasonable efforts to correct the deviation and redeliver the Deliverable within twenty (20) days thereafter. After such redelivery, the Parties shall again follow the acceptance procedures set forth above. The foregoing, in conjunction with Customer’s right to terminate this Agreement for material breach where applicable, sets forth Customer’s sole remedy and Company’s only liability for defects or issues with a Deliverable. In all cases and for the avoidance of doubt, Company retains all rights and interests (including ownership) of all Deliverables, and Customer receives no right, title, or interest in or to Deliverables other than the designated Assigned IP.
(c) Company offers the following plans for its Whisker Cloud Services:
- Launch Plan: Company will host and maintain Customer’s website with a targeted 99.8% uptime on Company’s third party cloud servers. If Customer requests, Company will host Customer’s domain at no additional cost to Customer at this time. Each Customer website comes with a free logo and branding design, as many pages as Customer requests, and multiple meetings with Customer’s onboarding team. Company will maintain standard firewalls and SSL certificates on Customer’s website which are designed to protect against hacks and security issues. This plan also comes with unlimited support, reputation management, built-in SEO features, and a custom analytics dashboard that provides real-time data;
- Grow Plan: This plan includes all components of the Launch Plan plus access to the Company team for assistance with graphic design and posting and optimizing blogs with proper SEO metadata and designs;
- Content Plan: This plan includes all components of the Launch Plan plus a social media team designed to address Customer social media needs. Company will post to social networks such as Facebook, Twitter, and Instagram on Customer’s behalf, reply to comments, create graphics, write blog posts, and overall manage Customer’s content on Customer’s website. Customer will also receive a social media dashboard with engagement and demographic data upon request.
14.2. Assignment. This Agreement shall be binding upon and for the benefit of Company, Customer, and their respective permitted successors and assigns. Either Party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Except as expressly stated herein, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. Company may use independent contractors, subcontractors, or other third parties in connection with the provision of Services under this Agreement.
14.3. Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, pandemic, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.
14.4. Anti-Corruption. In performing this Agreement, the parties agree to comply at all times with the applicable laws related to money-laundering, bribery, and anti-corruption, including the Foreign Corrupt Practices Act, the UK Anti-bribery Act, and any other applicable anti-corruption legislations. Each of the parties agrees and warrants that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
14.5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, USA without regard to its conflict of law provisions.
14.6. Disputes; Venue. Any disputes between the Parties arising out of this Agreement shall be resolved as follows: Members of the senior management of both Parties shall meet to attempt to resolve such disputes. If a dispute cannot be resolved within fifteen (15) days, either Party may make a written demand for mediation. Within fifteen (15) days after such written demand, the Parties shall meet for one day with an impartial mediator. The costs and expenses of the mediator shall be shared equally by the Parties. If the dispute is not resolved by mediation, the dispute shall be settled in the federal and state courts sitting in the State of Delaware, USA, which will have proper and exclusive jurisdiction and venue, provided that either Party may seek injunctive relief in any court of competent jurisdiction.
14.7. Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
14.8. Relationship of the Parties. The relationship between Company and Customer is that of an independent contractor, and nothing in this Agreement shall be construed as making the Parties hereto partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
14.9. Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes: (a) on the delivery date if delivered personally to the Party to whom the same is directed; (b) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt; or (c) five (5) business days after the mailing date whether or not actually received, if sent by U.S. first class mail, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the Party as set forth below. Either Party may change its address by giving written notice of such change to the other Party.
Unless as otherwise set forth on the Order Form, Company’s address:
Petvisor Holdings, LLC
ATTN: Ben Davis
221 NE Ivanhoe Blvd Suite 310
Orlando, FL 32804
14.10. Modifications to Subscription Services. Company may make modifications to the Subscription Services or particular components of the Subscription Services from time to time, provided that such modifications do not materially degrade any functionality of the Subscription Services.
14.11. Publicity. Customer hereby grants Company a non-exclusive license solely during the term of this Agreement to use Customer’s name and display Customer’s logo in Company’s customer lists and in the customer section of Company’s website.
14.12. No Third-Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.
14.13. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, but all of which together shall constitute but one and the same instrument. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical delivery of the paper document bearing the original signature.
14.14. Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.