Covetrus Ascend Software Subscription Agreement (AU/NZ)

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This Covetrus Ascend Subscription Agreement (“Agreement”), together with the Terms of Service, Customer Data Processing Addendum, and Order Form (collectively, “Ancillary Agreements”), collectively set forth the terms on which Covetrus Software Services Pty Ltd. (“Covetrus”) agrees to provide Customer with software (“Software”) and services (“Services”) and set forth each party’s rights and obligations in relation to Software and Services.

By using Software and receiving Services, You, a user of the Software and Services, agree to follow and be bound by the terms and conditions of this Agreement. If You do not agree to all the terms and conditions in this Agreement, You must not use Software or receive Services.

For further information about how we may collect and use your personal data in connection with Your use of the Software and Services, please see our Privacy Policy. You can find our Terms of Service, Privacy Policy, and Data Processing Addendum online at together at Covetrus.com/Legal with some additional resources such as the Covetrus Brand Guide.

Definitions.
1. Capitalized terms shall have the meaning set forth below or otherwise in the body of this Agreement.
2. In this Agreement, unless it is specified otherwise, or the context requires otherwise:
  1. “Affiliate” means an entity that controls, is controlled by, or is under common control with a party, where “control” means the direct or indirect ownership of more than 50% of the voting securities or other ownership interest of an entity. Affiliates of either party may conduct business under this Agreement by signing an Order Form.
  2. “API” means a set of routines, protocols, and tools for building software applications that defines interactions between multiple software intermediaries.
  3. “Authorised User” means any employee, contractor, officer or agent of Your business authorised by Customer to use Software and receive Services;
  4. “Australian Privacy Laws” means (i) the Privacy Act 1988 (Cth), including the ‘Australian Privacy Principles’ that form part of that Act; and (ii) all other laws applicable in respect of the processing of personal data;
  5. “Business Day” means a day other than a Saturday, Sunday or public holiday in Customer’s country of residence;
  6. “Covetrus” means Covetrus Software Services Pty Ltd and/or, where applicable, its relevant Affiliate(s);
  7. “Covetrus Website” means https://software.covetrus.com/emea/or any other URL address notified to You by Covetrus from time to time;
  8. “Customer” means the person or entity that registers to use Software and receive Services, as set out in the Order Form. “You” and “Customer” are interchangeable and have the same meaning;
  9. “Customer Data” means any data, information or material that Customer provides or makes available in the course of using the Services;
  10. “Customer Personal Data” means the personal data processed by Covetrus on behalf of the Customer in connection with the provision of the Services; “Customer Data Processing Addendum” means the data processing agreement entered into between Covetrus and the Customer;
    “Customer Data Processing Addendum” means the data processing agreement entered into between Covetrus and the Customer;
  11. “Documentation” means documentation (if any) made available by Covetrus to You through Software, which sets out a description of Software and the user instructions for Software;
  12. “Effective Date” means the date of the signature hereunder.
  13. “Fees” means the Subscription Fees and Services Fees (if any);
  14. “GDPR” means Regulation (EU) 2016/679;
  15. “Intellectual Property Rights” means all brand names, trademarks, service marks, trade names, logos, copyrights, patents, licenses, designs and rights in a design, look and feel, know-how, trade secrets, inventions, technical data, concepts, ideas, moral rights and all other similar property, whether or not registered, in the course of being registered or unregistered and any analogous rights worldwide;
  16. “NZ Data Protection Laws” means the Privacy Act 2020 and any other New Zealand laws and regulations application to personal data;
  17. “Order Form” means the order form provided to Customer by Covetrus and signed by Customer;
  18. “Privacy Policy” means the Covetrus Privacy Policy, as amended from time to time, and located at www.covetrus.com/legal/].
  19. “Related Company” includes any subsidiary, affiliate, or successor in interest, or any of its shareholders, directors, officers, employees, agents or nominees;
  20. “Services” means implementation and other services (if any), as may be more particularly described in the Order Form;
  21. “Services Fees” means the fees for Services (if any), as set out in the Order Form;
  22. “Software” means Covetrus’s veterinary practice management software, Covetrus Ascend provided on a software-as-a-service basis and accessible via the Covetrus Website, as may be updated by Covetrus from time to time;
  23. “SOW” means any mutually-agreed-upon statement of work issued subject to this Agreement.
  24. “Subscription Fee” means the monthly subscription fees payable for Your access and use of Software;
  25. “Subscription Term” has the meaning given in clause 11.1;
  26. “Third-Party Provider” has the meaning given in clause 10.5(a);
  27. “UK GDPR” as defined in section 3 of the Data Protection Act 2018;
  28. “Virus” means anything or device (including any software, code, file or program) that may: (a) prevent, impair or otherwise adversely affect operation of any computer software, hardware or network, any tele-communications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or operation of any program or data, including reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
3. In the event of and to the extent that any conflict or inconsistency between this Agreement and the Order Form, and except as expressly specified in any part, this Agreement will prevail. If there is any conflict between this Subscription Agreement and the Terms of Service, and except as expressly specified in any part, the Terms of Service will prevail.
4. In the event of any conflict or inconsistency between this Agreement and the Customer Data Processing Addendum, and except as expressly specified in any part, the Data Processing Addendum will prevail.

Access to Software
1. Covetrus grants Customer a non-exclusive, non-transferable right to access and use Software and Documentation during the Subscription Term solely for Customer’s internal business operations.
2. Customer will:
  1. ensure that the number of Authorized active Users that the customer authorises to access and use Software and Documentation does not exceed the maximum number of available licences allocated to Your account, as specified in the Order Form;
  2. be responsible for determining the level of access that each Authorised User has to access and use Software, and Customer acknowledges that Covetrus will not be responsible for Customer’s use, or inability to use, Software arising out of or in connection with any act or omission by any Authorised User;
  3. maintain a written, up to of date list of current Authorised Users and provide such list to Covetrus within five (5) Business Days after Covetrus’s written request thereof;
  4. keep secure logins and passwords for Your access and use of Software and Documentation and keep such logins and passwords confidential;
  5. procure that each Authorised User will keep a secure password for its use of Software and Documentation and keep this password confidential;
  6. notify Authorised Users, and ensure that Authorised Users understand and agree, that their use of Software is subject to the terms and conditions set out in this Agreement;
  7. obtain consent from any party providing Customer Personal Data to collect and process such Customer Personal Data (to the extent required by applicable data protection laws) through the provision of the Services;
  8. allow Covetrus at any time to audit Customer’s use of Software in order to establish whether such use is in accordance with the Agreement;
  9. promptly disable any login account, or enable Covetrus to do so, if Customer or Covetrus discovers that any login details have been provided to any unauthorised third party; and
  10. abide by Covetrus’s Privacy Policy, Customer Data Processing Addendum, and this Agreement, with special concern paid to the security of Customer Data;
  11. on demand, pay Covetrus an amount of any underpayment of Subscription Fees discovered by Covetrus through undertaking the audits referred to in clause 2.2(g).
3. Customer shall not:
  1. access, store, distribute or transmit any Viruses in respect of Software, and Covetrus may, without liability to Customer, disable Customer’s access to Software if Customer is in breach of this clause;
  2. except to the extent permitted by any applicable law that is incapable of exclusion by agreement between the parties:
    1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of Software or Documentation (as applicable) in any form or media or by any means;
    2. rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available Software, Services or Documentation except as expressly permitted under this Agreement
    3. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Software;
  3. access all or any part of Software or Documentation in order to build a product or service that competes with Software or Documentation;
  4. attempt to undermine the integrity or security of:
    1. Software; or
    2. Covetrus’s, or any third party’s, systems, networks, data, or resources used in provision of Software or Services;
  5. make Software and/or Documentation available to any third party except Authorised Users in accordance with the Agreement;
  6. use or publish any of Covetrus’s branding, trademarks, or logos except with Covetrus’s prior written permission, that may be revoked at any time;
  7. attempt to obtain or assist third parties in obtaining access to Software or Documentation, other than as provided under this subsection; or
  8. otherwise access or use Services or Software beyond the scope of the authorisations granted hereunder.
4. Customer will use all reasonable endeavours to prevent any unauthorised access to, or use of, Software and/or Documentation and, in the event of any such unauthorised access or use, promptly notify Covetrus.
5. Any act or omission by Authorised Users relating to use of Software will be treated as Customer’s act or omission. Covetrus may terminate any authority Customer has granted to any Authorised User if Covetrus considers that the relevant Authorised User is in breach of the Agreement or puts Customer in breach of the Agreement.
6. Customer acknowledges that Covetrus regularly upgrades and updates Software and that Software is continually evolving. Some of these changes will occur automatically, while others may require Customer to schedule or implement the changes. Customer will, where required, upgrade Customer’s software and/or devices in order to make efficient use of Software. Covetrus will provide Customer reasonable notice of any such changes.
7. Changes to number of Authorised Users.
  1. Customer may request an increase or decrease in the maximum number of Authorised Users who can access and use Software by notifying Covetrus. If agreed by Covetrus, Covetrus will increase or decrease the maximum number of Authorised Users on Customer’s account as soon as practicable and in accordance with the terms of this Agreement.
  2. If Customer decreases the number of Authorised Users, no refunds will be paid in respect of any unused portion of any Subscription Fees that have been paid in advance. If Customer increases the number of Authorised Users, Covetrus will charge Customer for any net amount due for additional Authorised Users in the immediately following invoice.

Term and Termination
1. Agreement will continue in effect for the duration of all Order Forms and SOW’s hereunder. Each Order Form or SOW will commence upon its effective date as set forth in the applicable Order Form or SOW and continue for the term set forth therein (“Subscription Term”).
2. In addition to any other express termination right set forth in this Agreement,
  1. Covetrus may terminate this Agreement, effective on written notice to Customer, if Customer:
    1. fails to pay any amount when due hereunder and such failure continues more than 20 days after Customer has been granted written notice thereof; or
    2. breaches any of its obligations under this Agreement;
  2. either party may terminate this Agreement, effective upon written notice to the other party, if the other party materially breaches this Agreement, and such breach is: (A) incapable to cure; or (B) capable to cure but remains uncured within thirty (30) days after the non-breaching party provides the breaching party written notice of such breach;
  3. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
  4. upon expiration of any Initial Term (as may be defined in an Order Form or SOW) either Party may terminate this Agreement for its convenience, or any Order Form or SOW, effective ninety (90) days after written notice to the other party.
3. If Covetrus terminates the Agreement per clause 3.2, Customer will:
  1. not be entitled to a refund of any Subscription Fees pre-paid to Covetrus for unused access to Software or Services; and
  2. be liable to pay the Subscription Fees on a prorated basis for each day up to and including the date of termination of the Agreement to the extent that You have not paid for use of Software or Services on those days.

Services
1. Covetrus will provide Services (if any) in the manner set out in the Order Form. Customer shall reimburse Covetrus all expenses properly incurred by Covetrus in connection with Services as an additional charge, except to the extent already incorporated in Services Fees.
2. Where Covetrus provides any Services to Customer:
  1. Customer will, within the agreed timeline, carry out all necessary administrative tasks including (without limit), gathering and providing information, setting up of templates, attending online meetings and webinars, and configuration procedures;
  2. Customer’s Authorised Users will be required to attend multiple online training sessions. Customer will ensure Authorised Users are available to attend such training sessions. Customer acknowledges that any online training sessions that are missed due to non-attendance will not be recovered. It is Customer’s responsibility to provide training for any new Authorised Users added after training has been provided by Covetrus;
  3. Customer will carry out all checks and actions in relation to hardware required by Covetrus in notices to Customer from time to time; and
  4. during the onsite implementation (if any), Customer will make available at least one staff member with decision-making authority at each site to accompany and assist Covetrus personnel at all times.

Charges and Payment
1. Customer will pay the Subscription Fees and Services Fees (if any), to Covetrus in accordance with this clause and the Order Form.
2. Covetrus will invoice all monthly service fees one month in advance. Payment of each invoice will be electronically processed by Covetrus on the due date by either ACH or direct credit from Your nominated bank account. Customer shall maintain a current direct debit authorisation for Covetrus to debit Customer’s bank account for amounts due under this Agreement. Customer represents that the account information, physical address, email address, and other information provided by Customer is true and accurate in all respects and agrees to update such information promptly if it is or becomes incorrect or outdated.
3. If Customer fails to pay any invoice when due, then without prejudice to any of Covetrus’s other rights and remedies:
  1. Covetrus may, without liability to Customer:
    1. disable access to any or all of Software, and will be under no obligation to provide access to any or all of Software; and
    2. cease to provide all or any Services while the invoice(s) concerned remain unpaid.
  2. interest will accrue on such due amounts at an annual rate equal to 5% above Bank of England base rate per annum or the highest rate permitted by applicable law, whichever is lower, accruing from the due date until the date paid. In addition, if any amount owed by Customer under this Agreement requires collection efforts, Customer agrees to reimburse Covetrus for all costs of collection, including legal fees.
4. All amounts stated on an Order Form are:
  1. exclusive of all applicable taxes, levies and duties (if any); and
5. If Customer is required by law to deduct or withhold taxes or charges from amounts due Covetrus under the Agreement or any Order Form, Customer will ensure that the amount due Covetrus is increased so that the payment actually made to Covetrus is the amount due Covetrus as if no such taxes or charges had been imposed.
6. After the first anniversary of the Commencement Date and from time to time thereafter Covetrus shall be entitled to increase the Charges by giving to the Customer not less than thirty (30) days notice in writing of such change in the form of an update to this Agreement’s “Terms of Service,”as found at: www.covetrus.com/legal/

Confidentiality
1. From time to time during the Subscription Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in writing, electronic, or other form or media/in written or electronic form, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information” or “CI”).
2. CI does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to receiving party at the time of disclosure; (c) rightfully obtained by receiving party on a non-confidential basis from a third party not obligated to disclosing party; or (d) independently developed by receiving party without use of CI.
3. Receiving party shall not disclose disclosing party’s CI to any person or entity, except receiving party’s officers, employees or professional advisors who have a need to know the CI for receiving party to exercise its rights or perform its obligations under this Agreement.
4. Notwithstanding the foregoing, receiving party may disclose CI to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party receiving the order shall first have given written notice to disclosing party (unless prevented by law from doing so) and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings.
5. Upon expiration or termination of the Agreement, receiving party shall promptly return to disclosing party all copies, whether in written, electronic, or other form or media, of disclosing party’s CI, or destroy all such copies and certify in writing to disclosing party that such CI has been destroyed. Each party’s obligations of non-disclosure with regard to CI are effective as of the Effective Date and will expire five years from the date first disclosed to receiving party; provided, however, with respect to any CI that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive termination or expiration of this Agreement for as long as such CI remains subject to trade secret protection under applicable law.

Data Protection
1. If and to the extent Covetrus receives and/or is granted access to Customer Personal Data:

General
1. Governing Law. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of Queensland, Australia. All claims or proceedings arising under, out of or in connection with the Agreement shall be submitted to the exclusive jurisdiction of the courts of Australia and each party irrevocably submits to such venue and the personal jurisdiction of such courts.
2. Notices. All notices under this Agreement shall be in writing. Updates to Ancillary Agreements will be found at: https://covetrus.com/legal/. Notices to Customer outside of updates to Ancillary Agreements may be delivered by electronic mail or postage prepaid mail to the most current address on file. Notices to Covetrus shall be delivered by postage prepaid first-class mail to Covetrus’s then-current company headquarters address, to the attention of the General Manager.
To Covetrus:
Covetrus Software Services Pty Ltd.

To Customer:
Customer Contact’s address set forth on the Order Form.
1. Regulation. Services or Software utilize software and technology that may be subject to UK export control laws, including the Export Control Act 2002, the Export Control Order 2008, and the EU DualUse Regulation (Council Regulation 428/2009) (if applicable). Customer shall not, directly or indirectly, export, re-export, or release the Services and Software or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the UK. The provisions of this sub-clause shall be without prejudice to Customer’s obligations, and shall not grant Customer any rights which it does not otherwise have, under this Agreement. Assignments. Customer may not assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, without prior written consent by Covetrus. Any attempted assignment or transfer in violation of the foregoing shall be null and void from the beginning and without effect. Covetrus may freely assign and delegate its obligations under this Agreement, including to its affiliates, service providers, or to any successor in interest in connection with its merger, acquisition, corporate reorganization, or sale or transfer of all or substantially all of its business or assets to which this Agreement relates.
2. Relationship; Third-Party Beneficiaries. The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create any agency, employment, partnership, fiduciary, or joint venture relationship between the parties. Without prejudice to clause 10.2, under no circumstances shall any pet owner or any designated user of or visitor to Customer’s website be deemed a third-party beneficiary of this Agreement.
3. Equitable Relief. Customer recognizes that any actual or threatened breach of licensing, usage, confidentiality, proprietary rights, or other restrictions under this Agreement would cause irreparable harm to Covetrus, the extent of which would be difficult and impracticable to assess, and that monetary damages would not be an adequate remedy for such breach. Accordingly, in addition to all other remedies available under the circumstances, Covetrus shall be entitled to seek immediate equitable and other provisional relief in any court of competent jurisdiction.
4. Amendment; Waiver. From time to time, Covetrus may post or otherwise make available amendments to this Agreement. Customer’s continued use of Services shall constitute its acceptance of such amended terms. Any other amendments to this Agreement must be in a written instrument executed by a duly authorized representative of Covetrus. No rights shall be waived by any act, omission, or knowledge of a party, except by an instrument in writing expressly waiving such rights and signed by a duly authorized representative of waiving party. Any waiver on one occasion shall not constitute a waiver on subsequent occasions.
5. Severability; Construction. If any provision of this Agreement is determined to be unenforceable under applicable law, such provision shall be amended by a court of competent jurisdiction to accomplish the objectives of such provision to the greatest extent possible under applicable law, or severed from this Agreement if such amendment is not possible, and the remaining provisions of this Agreement shall continue in full force and effect. The headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. The term “including” as used herein means “including without limitation.” The terms “herein”, “hereunder”, “hereto”, “hereof”, and similar variations refer to this Agreement as a whole, rather than to any particular clause.
6. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior agreements and understandings, whether written or oral, with regard to the subject matter hereof, except where expressly indicated otherwise. Notwithstanding any acknowledgment by Covetrus, any provision or condition in any purchase order, voucher, letter, or other memorandum of Customer that is in any way inconsistent with, or adds to, provisions of this Agreement, is expressly objected to and rejected by Covetrus, and null and void. Neither the course of conduct between parties nor trade practice shall act to modify provisions of this Agreement.
7. Provisions of this Agreement that by their nature should apply beyond their terms will remain in full force and effect after any termination or expiration of this Agreement.

Covetrus Party
1. In the case of any Order Form or Ancillary Agreement stated to be agreed by an Affiliate of Covetrus (i.e. other than Covetrus Software Services Pty Ltd.), unless the context otherwise requires the term “Covetrus” as used throughout this Agreement shall, in respect of that Order Form or Ancillary Agreement, mean the specific Covetrus Affiliate named as the party executing or agreeing to such Order Form or Ancillary Agreement with Customer.

Rights of Parties. Third Party Rights.
1. Covetrus and its Affiliates may enforce the terms of this Agreement subject to and in accordance with this clause, this Agreement and the Contracts (Rights of Third Parties) Act 1999. It is agreed that this Agreement is intended to confer a benefit on Affiliates of Covetrus, including by making the exclusions and limitations of liability available to them in accordance with this Agreement. For the avoidance of doubt, Covetrus may appoint any Affiliate to exercise any of its rights or perform any of its duties hereunder, provided that Covetrus shall be solely responsible and liable for the performance of obligations under and compliance with this Agreement.
2. Except as expressly provided herein, a person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
3. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any person that is not a party to this Agreement.

Covetrus Ascend Software Subscription Agreement (AU/NZ)

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