VetSuccess System License Agreement

Last Modified Oct. 19, 2016

This VetSuccess System License Agreement (the “Agreement”) is a binding agreement between Vet Success Inc. (“VetSuccess”) and the veterinary practice or other entity desiring to contract with VetSuccess (“Customer”). This Agreement governs your use of the VetSuccess System, as defined herein. The VetSuccess System is licensed, and not sold, to you.

BY CLICKING THE “SIGN UP” OR “SUBMIT” BUTTON, OR TAKING ANY SUCH OTHER ACTION THAT INITIATES YOUR TRIAL PERIOD OR MEMBERSHIP PLAN WITH US, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE THE DULY AUTHORIZED REPRESENTATIVE OF THE CUSTOMER; AND (C) ACCEPT THIS AGREEMENT ON BEHALF OF THE CUSTOMER AND AGREE THAT THE CUSTOMER IS LEGALLY BOUND BY ITS TERMS.

  1. DEFINITIONS.
  • “Confidential Information” means confidential or proprietary information of a party which is disclosed in oral, written or any other form to the other party. This includes trade secrets, business and financial data, customer information and lists, the Software and any associated documentation, databases, and any passwords/other identification words/codes used to access/use the software.  Confidential Information may also include, but is not limited to, technical know-how, technical specifications, software code, manners of conducting business and operations, strategic business plans, systems, results of testing, consumer information, personal information, account information, product information, concepts, and compilations of data.  In order for information disclosed orally to be considered Confidential Information it shall be confirmed in writing by the disclosing party within 30 days after such disclosure.
  • “Customer Materials” means all materials and information, including logo files, documents, Customer data, and content that are provided to VetSuccess, either directly or through a subcontractor of VetSuccess or a Data Extraction Provider on behalf of Customer, in connection with this Agreement, including without limitation information regarding Customer’s clients necessary to VetSuccess’s performance under this Agreement. Customer Materials expressly excludes Resultant Data.
  • “Deliverables” means any and all reports, data analysis, Marketing Materials, instructions, specifications, and other documents and materials that VetSuccess provides or makes available to the Customer in any medium associated with the System, including without limitation documents or specifications which describe the functionality, components, features or requirements of the System, including the installation, configuration, integration, operation, use, support or maintenance thereof.
  • “Effective Date” means the date that Customer takes such actions to indicate Customer has accepted the terms of this Agreement.
  • “Industry Partner” means third-party organizations, including Third Parties as defined herein, operating in the veterinary industry with which VetSuccess shares a partnering relationship to provide the Services, System, or Marketing Materials.
  • “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  • “Law(s)” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
  • “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
  • “Marketing Materials” means all marketing and advertising materials provided by VetSuccess to Customer’s clients on Customer’s or an Industry Partner’s behalf in connection with the Membership Plan or Trial Period (as defined herein), including without limitation email communications, direct mail, text messages, notifications through mobile applications, and any other similar form of communications between the Customer and its clients.
  • “Membership Fees” means those fees paid to VetSuccess in accordance with the Order Form as of the Effective Date.
  • “Membership Plan” means the type of plan chosen by the Customer from the available plans as of the Effective Date, or such other membership plan as documented in writing by VetSuccess on behalf of the Customer.
  • “Non-Identifiable Practice Data” means data extracted from a veterinary practice that either: (i) is not directly tied to an identifiable pet owner; or (ii) has been aggregated, obfuscated, or manipulated in such a way that it cannot be tied to any identifiable pet or pet owner.
  • “Order Form” means that form found on a VetSuccess website as of the Effective Date on which the Customer provides information to VetSuccess regarding the Customer’s selections pertaining to the System and the Membership Plan.
  • “Operating Environment” means Customer’s computer systems on which the System is intended to be accessed or installed and operated.
  • Process” means to take any action or perform any operation or set of operations on any data, information or other content, including without limitation to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
  • Resultant Data” means information, data, and other content Processed by VetSuccess or a Subcontractor that is derived by or through the System. Resultant Data will only include Non-Identifiable Practice Data.  All right, title, and interest to Resultant Data shall remain with and is hereby assigned to VetSuccess.
  • “Services” means those training, maintenance, support, and similar services reasonably necessary for Customer to use the System.
  • “System” means the VetSuccess software, the Deliverables, the Services, and any other work product and materials related thereto that VetSuccess is required to or otherwise does create or provide to Customer in connection with the Services.
  • “Third-Party Materials” means materials and information, in any form or medium, including any software, (including open-source software), documents, data, content, specifications, products, equipment or components of or relating to the System that are not proprietary to Provider.
  1. ENGAGEMENT OF VETSUCCESS; GENERAL SERVICE OBLIGATIONS.
  • Engagement of VetSuccess; Delivery. Customer hereby engages VetSuccess, and VetSuccess hereby accepts such engagement, to provide the System on the terms and conditions set forth in this Agreement. Following the receipt of a completed Order Form from Customer and, when applicable, payment of the Membership Fees, VetSuccess will provide access to the System to Customer.  Customer assumes sole responsibility for any inaccurate information provided to VetSuccess on the Order Form or elsewhere.  Customer acknowledges and agrees that Customer has no right under this Agreement to receive the source code for the System.
  • Changes. In addition to the System provided to Customer based on its Membership Plan, the Customer may, at any time, request in writing changes to the System or specific Services. VetSuccess will evaluate the request, and if possible, implement the changes. VetSuccess reserves the right in VetSuccess’s sole discretion to charge Customer for changes to the System (the “System Design Change Fees”), provided that VetSuccess provides Customer with written notice of the System Design Change Fees and Customer agrees in writing.
  • Third Parties.
    • VetSuccess will from time to time in its discretion engage third parties to perform Services (each, a “Third Party“), and the System may include or operate in conjunction with Third-Party Materials. All Third-Party Materials are provided pursuant to the terms and conditions of the applicable third-party license agreement. Customer will comply with all such third-party license agreements and any breach by Customer thereof will be deemed a breach of this Agreement.
    • Without limiting the foregoing, Customer acknowledges that the System utilizes the services of a third-party data extraction software provider (“Data Extraction Provider”), and that those services provided to Customer are subject to the terms of the Data Extraction Provider’s agreement. VETSUCCESS HAS NO LIABILITY FOR THE ACTIONS OF THE DATA EXTRACTION PROVIDER. If Customer does not agree to the terms of Data Extraction Provider’s agreement, Customer’s sole remedy is to request an alternative Data Extraction Provider from VetSuccess; in the event VetSuccess, in its sole discretion, is unable to honor that request, Customer may terminate this Agreement.
    • Without limiting the foregoing, Customer acknowledges and agrees that Resultant Data may be shared with Industry Partners.
  1. LICENSE TO USE SYSTEM.
  • VetSuccess License. Subject to and conditioned upon Customer’s compliance with and performance in accordance with all other terms and conditions of this Agreement, VetSuccess hereby grants to Customer a non-transferable license to install, operate, access, and use the System for the Term of the Agreement solely for Customer’s business operations and in accordance with the operating instructions or other applicable Deliverables.
  • License Restrictions. Customer will not, and will not permit any other person to, access or use the System except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, except as this Agreement expressly permits, Customer will not and will not permit another person to:
    • copy, modify, or create derivative works or improvements of the System;
    • rent, lease, lend, sell, sublicense, assign, publish, transfer, or otherwise make available the System to any other Person, including through or in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service;
    • reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the System or any part thereof;
    • remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any System, including any copy thereof;
    • use any System in a manner or for any purpose that infringes, misappropriates or otherwise violates any Law or Intellectual Property Right;
    • use the System for purposes of competitive analysis of the System, the development of a competing software product or service, or any other purpose that is to VetSuccess’s commercial disadvantage; or
    • otherwise use the System beyond the scope of the license granted herein.
  • Customer Materials License.
    • Customer hereby grants to VetSuccess a fully paid-up and royalty-free, non-exclusive right and license to use and display the Customer logo in association with the System and as otherwise described herein during the Term of the Agreement.
    • Customer hereby grants to VetSuccess a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify and create derivative works and improvements of the Customer Materials to develop and use the System, prepare and send the Marketing Materials, create the Resultant Data, and otherwise as necessary to offer the System and perform the Services for the benefit of Customer, and for VetSuccess’s general development and commercialization. The term of such license will commence upon Customer’s first delivery of Customer Materials to VetSuccess and be perpetual.
  1. CUSTOMER OBLIGATIONS.
  • Customer will provide in a reasonable timeframe the Customer Materials and all such other resources as reasonably requested by VetSuccess and provide all cooperation and assistance VetSuccess reasonably requests to enable VetSuccess to exercise its rights or perform its obligations under this Agreement. VetSuccess is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement. In the event of any such delay or failure, VetSuccess may, by notice to Customer, extend all or any subsequent due dates as VetSuccess deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies VetSuccess may have for any such failure or delay by Customer.
  • Customer shall take all necessary steps to ensure its rights to the use of Customer Materials and to ensure that Customer’s access to and use of the System, including without limitation the sending of Marketing Materials by VetSuccess on behalf of the Customer, is in compliance with all Laws.
  1. TRAINING; MAINTENANCE AND SUPPORT.
  • Training and Support. VetSuccess will provide Customer with commercially reasonable training, maintenance, and support services with regard to the use of the System during the Term of the Agreement.
  • Updates. VetSuccess, at its sole option, may from time to time provide updates to the System (the “Updates”).  Customer is required to accept Updates, and Customer acknowledges that, by downloading, installing, or otherwise accessing the Updates, that those Updates will be considered part of the System and subject to the terms and conditions of this Agreement.
  1. FEES; PAYMENT TERMS
  • Fees. Customer will pay VetSuccess the Membership Fees as set forth on the VetSuccess website as of the Effective Date of this Agreement, depending upon which Membership Plan Customer chooses, or such other rate as quoted to Customer by an authorized agent of VetSuccess.  Notwithstanding the foregoing, in the event that the Customer is participating in a demo or other trial membership, or is sponsored by a third-party with which VetSuccess has an on-going relationship (an “Industry Partner”) (collectively, a “Trial Period”), certain fees may be covered by the Industry Partner or waived by VetSuccess, and Customer will not be required to pay fees for the portion of the System that is offered under the Trial Period for the period of time the Customer is participating in the Trial Period.  At the end of the Trial Period, the Customer will be required to pay the applicable Membership Fees for continued access to the System or the additional portion of the System offered under the Trial Period.
  • Payment. Membership Fees will be automatically deducted from the account provided by Customer on the Order Form on or prior to the first date of the next Monthly Term or Annual Term, as the case may be. Customer will make all payments hereunder in US dollars.
  • Payment By Credit Card. VetSuccess accepts credit card payments as set forth on VetSuccess’s website (“Credit Card Payments”). Credit Card Payments are due and payable on the first day of each new Monthly Term or Annual Term, as the case may be (collectively, a “Membership Term”) without the issuance of an invoice. Customer is responsible for all charges from its card issuer or bank associated with VetSuccess’s processing of Customer’s Credit Card Payment. A Membership Term purchased by Credit Card Payment is made available upon receipt of payment in full. The terms and conditions in this Section, and other supplementary terms disclosed to and accepted by Customer during the payment process will apply to Credit Card Payments (including terms imposed by the applicable Credit Card Payment processor acting on VetSuccess’s or Customer’s behalf.) Customer agrees to VetSuccess’s, or its Credit Card Payment processor’s collection and use of certain information associated with Credit Card Payments, including but not limited to: (i) credit card number, expiration date, name and CVV2 code as it appears on the credit card; (ii) credit card billing address; (iii) a valid e-mail address and phone number of the purchaser; or (iv) a valid sales tax exemption number when applicable.   Customer represents and warrants that any credit/debit card used to pay Membership Fees is issued to Customer, and Customer has all necessary rights and authority to use the credit/debit card. Credit Card Payments are subject to validation checks and authorization by the card issuer.  VetSuccess is not obligated to inform Customer of the reason for the refusal of any Credit Card Payment.
  • Payment to Approved Distribution Partner. Notwithstanding the foregoing, in the event Customer entered into an agreement to license the System through a third-party distribution partner approved by VetSuccess (a “Distribution Partner”), Customer will pay the Membership Fees directly to the Distribution Partner. Such payments shall be subject to any additional payment terms of the Distribution Partner.
  • Rejection of Automatic Credit Card.  In the event that a charge made under this Agreement is rejected by Customer’s Credit Card, VetSuccess will have the right, in VetSuccess’s sole discretion, to suspend Customer’s license under this Agreement and access to the System, until Customer provides updated Credit Card information and such required fees are paid in full.  In the event that Customer has not cured the non-payment within fifteen (15) days of notice from VetSuccess of the rejected charge, VetSuccess has the right in VetSuccess’s sole discretion to terminate this Agreement.
  • Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”) related to the Membership, except any taxes assessed upon VetSuccess’s net income or employees. If VetSuccess is required to directly pay Taxes related to Customer’s use of the System, Customer agrees to promptly reimburse VetSuccess for any Taxes so paid by VetSuccess.
  • No Deduction or Setoff. Customer will pay all amounts due under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by VetSuccess whether under this Agreement, applicable Law or otherwise, and whether relating to VetSuccess’s breach, bankruptcy or otherwise.
  1. INTELLECTUAL PROPERTY RIGHTS.
  • System. Except as set forth in this section, all right, title and interest in and to: (a) the System; (b) Resultant Data; and (c) all works, inventions and other subject matter incorporating, based on, or derived from any System, including all customizations, enhancements, improvements and other modifications thereof (collectively, “Derivatives”), by whomsoever made and including all Intellectual Property Rights therein, are and will remain with VetSuccess. Customer has no right or license with respect to any System or Derivatives except as expressly licensed herein. All other rights in and to the System and Derivatives are expressly reserved by VetSuccess.
  • Customer Materials. Customer warrants that Customer has rights in and to the Customer Materials, including all rights needed to effectuate the terms of this Agreement. As between the parties, Customer is the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. All other rights in and to the Customer Materials are expressly reserved by Customer. Notwithstanding the foregoing, Customer acknowledges that Resultant Data is expressly excluded from Customer Materials, but to the extent necessary under the Law, Customer hereby unconditionally and irrevocably grants to VetSuccess an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
  1. CONFIDENTIALITY.
  • Non-Disclosure. Each party will use the other’s Confidential Information only to perform in accordance with the terms of this Agreement.  Each party will maintain the confidentiality of the other’s Confidential Information in the same manner in which it protects its own information of like kind, but in no event will either party take less than reasonable precautions to prevent the unauthorized use or disclosure of the Confidential Information.  Customer is permitted to disclose Confidential Information to its employees and authorized subcontractors on a need to know basis only, and provided that any such subcontractors have written confidentiality obligations to Customer.
  • Unauthorized Disclosure by Licensee. Customer will be responsible for, and will indemnify and hold VetSuccess harmless against, any damages arising from any unauthorized disclosure of VetSuccess’s Confidential Information.
  • Exceptions.
    • The confidentiality provisions of this Agreement do not apply to information that is entirely in the public domain; was known to the party prior to access to the information; was received lawfully from a third party through no breach of any obligation of confidentiality owed to the other party; or is created by that party’s employees independently of the other party’s Confidential Information.
    • Nothing in this Agreement will be deemed to prevent either party from disclosing any Confidential Information received hereunder pursuant to any regulatory, self-regulatory or supervisory authority having appropriate jurisdiction, or any applicable Law, provided that: (i) such disclosure will be limited to the minimum acceptable level of disclosure; (ii) that such party, unless prohibited by such regulatory, self-regulatory or supervisory authority, or such Law, will notify the other party of the imminent disclosure as soon as is practicable and in all events with sufficient prior notice to allow that party to seek a protective order or otherwise to object; and (iii) that the disclosing party will minimize or prevent such disclosure to the maximum extent allowed under applicable Law.
    • Each party will promptly inform the other party of any actual or suspected breach of this section by it (including its contractors and agents) upon becoming aware of such actual or suspected breach and agrees to reasonably cooperate with the other party in the incident response process.
  • Survival.  The provisions of this section will survive termination of this Agreement for a period of five (5) years and will inure to the benefit of the parties and their successors and assigns, except that VetSuccess’s rights relating to Resultant Data shall survive in perpetuity.
  1. TERM AND TERMINATION.
  • Selection of Membership Term. Customer may elect from the following Membership Terms: (a) a term of one month, which shall commence on the first day following the submission of the Order Form and remain effective until the same day of the following month (a “Monthly Term”); (b) an annual term which shall commence on the first day following the submission of the Order Form and remain effective until the same day of the following year (an “Annual Term”); or (c) any other membership term arrangements as agreed to and memorialized in a signed writing by the parties.
  • Automatic Renewal. The term of the Agreement, whether a Monthly Term or an Annual Term (or another term as agreed to by the parties as set forth in section 9.1.1), shall automatically renew unless Customer provides notice in writing to VetSuccess of Customer’s desire to terminate the Agreement thirty (30) days prior to the last day of the Monthly Term or the Annual Term, whichever applies to Customer.  The Customer may also elect to switch from a Monthly Term to an Annual Term, or an Annual Term to a Monthly Term, by providing such election in writing to VetSuccess no later than thirty (30) days prior to the last day of the current term.
    • Customers on a Trial Period may be terminated at any time at VetSuccess’s sole discretion.
    • For Customers on a Monthly Term, an Annual Term, or any other membership term arrangement as agreed to by Customer, may terminate this Agreement with thirty (30) days’ written notice to VetSuccess prior to the end of the then-current membership term, based on the Customer’s Membership Plan.
    • Either party may terminate this Agreement immediately based on a breach of this Agreement if the breach is incapable of cure; or if being capable of cure, the breach remains uncured for thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. Without limiting the foregoing, either party may terminate this Agreement, effective immediately, in the event the other party becomes insolvent, files or has filed against it voluntary or involuntary bankruptcy, or is generally unable to pay, or fails to pay, its debts as they become due.
  1. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, all licenses granted by either party to the other will also expire or terminate, except to the extent that any license has an express term that continues for a longer period or is perpetual. Without limiting the foregoing, all licenses granted to Customer in the System will also terminate and Customer will immediately cease all use and distribution of the System.
  1. NON-SOLICITATION. During the Term of this Agreement and for three (3) years after, Customer will not, and will not assist any other person to, directly or indirectly, recruit or solicit for employment or engagement as an independent contractor any person then or within the prior twelve (12) months employed or engaged by VetSuccess or any Subcontractor. In the event of a violation of this section, VetSuccess will be entitled to liquidated damages equal to the compensation paid by VetSuccess to the applicable employee or contractor during the prior twenty-four (24) months.
  1. REPRESENTATIONS AND WARRANTIES.
  • Customer represents and warrants:
    • that it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
    • has the full right, power and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement, including without limitation all rights in and to the Customer Materials, and expressly including the right to share the Customer’s client’s information for the purposes of this Agreement; and
    • the execution of this Agreement by Customer’s representative has been duly authorized by all necessary corporate or organizational action of such party.
  • DISCLAIMER OF WARRANTIES. THE SYSTEM AND THE SERVICES ARE PROVIDED “AS IS” AND VETSUCCESS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND VETSUCCESS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, VETSUCCESS MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE OR SYSTEM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S, OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
  1. INDEMNIFICATION.
  • VetSuccess Indemnification. VetSuccess will indemnify, defend, and hold harmless Customer from and against a Loss arising out of or relating to any claim, suit, action or proceeding (an “Action”) by a third party alleging that Customer’s use of the System (excluding Customer Materials and Third-Party materials) in compliance with this Agreement infringes a U.S. Intellectual Property Right. The foregoing obligation expressly excludes any Action or Losses arising out of or relating to any: (a) combination of the System with any hardware, system or other software or materials not provided or authorized in writing by VetSuccess; (b) modification of the System other than by VetSuccess, or with VetSuccess’s written approval; (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer; or (d) any act, omission or other matter described in the remainder of this Indemnification section, whether or not the same results in any Action against or Loss by any VetSuccess Indemnitee.
  • Customer Indemnification. Customer will indemnify, defend, and hold harmless VetSuccess and its Subcontractors and Affiliates, including without limitation, its Industry Partners, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “VetSuccess Indemnitee”) from and against any and all Losses incurred by any VetSuccess Indemnitee in connection with any Action by a third party arising out of or relating to: (a) Customer’s installation or use of the System in violation of the Agreement; (b) Customer Materials, or VetSuccess’s use thereof, in accordance with this Agreement; (c) VetSuccess’s compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by VetSuccess; or (d) any allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement.
  • Indemnification Procedure. Each party will promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified. The party seeking indemnification (the “Indemnitee”) will cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will immediately take control of the defense and investigation of such Action and will employ counsel [of its choice/reasonably acceptable to the Indemnitee] to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this section will not relieve the Indemnitor of its obligations herein except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
  • Mitigation. If the System, other than Customer Materials, is or in VetSuccess’s opinion is likely to be claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of the System, other than Customer Materials, is enjoined or threatened to be enjoined, VetSuccess may, at its option: (a) obtain the right for Customer to continue to use the System materially as contemplated by this Agreement; (b) modify or replace the System, in whole or in part; or (c) by written notice to Customer, terminate the license granted to Customer under this Agreement and require Customer to immediately cease any use of the System. In the event of termination, Customer will be entitled to a refund of the pro-rata amount remaining in the Customer’s then-current Term, and such refund shall be Customer’s sole remedy.
  • THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDIES AND VETSUCCESS’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
  1. LIMITATIONS OF LIABILITY.
  • EXCLUSION OF DAMAGES. IN NO EVENT WILL VETSUCCESS OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE; OR (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  • CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF VETSUCCESS AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT OF MEMBERSHIP FEES PAID TO VETSUCCESS BY CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  1. FORCE MAJEURE. In no event will VetSuccess be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond VetSuccess’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
  1. EXPORT REGULATION. The System, or certain components thereof, may be subject to US export control laws, including the US Export Administration Act and its associated regulations.  The Licensee shall not, directly or indirectly, export, re-export or release or make accessible the System, or any component thereof, from any jurisdiction or country to which export, re-export, or release is prohibited by Law.  The Licensee shall comply with all Laws with respect to its use of the System.
  1. MISCELLANEOUS.
  • Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
  • Public Announcements. Neither party will issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned or delayed, provided, however, that VetSuccess may, without requiring Customer’s consent, include Customer’s name, and/or other indicia in its lists of VetSuccess’s current or former customers of VetSuccess in promotional and marketing materials, including without limitation on VetSuccess’s website.
  • Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to VetSuccess at such address as VetSuccess may designate from time to time in accordance with this section. Notices sent in accordance with this section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
  • Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
  • Entire Agreement; Survival. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In addition to survival of terms as expressly described herein, all terms that by their nature should survive the termination or expiration of the agreement shall survive.
  • Assignment. Customer will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, without VetSuccess’s prior written consent, provided, however, that Customer may assign this agreement without written consent in connection with the transfer or sale of all or substantially all of its business related to this Agreement, or in the event of its merger, consolidation, change in control or similar transaction. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
  • No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
  • Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  • Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  • Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the System of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted in the United States District Court for the Northern District of New York or the courts of the State of New York,, or other such county that VetSuccess shall designate. Customer irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein will be effective service of process for any suit, action or other proceeding brought in any such court.
  • Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach of any of its obligations under Sections 7, 8, or 10 would cause the VetSuccess irreparable harm for which monetary damages would not be an adequate and agrees that VetSuccess will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

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