Covetrus Ascend Software Terms of Service (AU/NZ)

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This Covetrus Ascend Terms of Service (“Agreement”), together with the Software Subscription Agreement, Privacy Policy, Data Processing Addendum, and Order Form (collectively, “Ancillary Agreements”), collectively set forth the terms on which Covetrus Software Services Pty Ltd ACN/ABN: 094 621 557 (“Covetrus”) agrees to provide Customer with software (“Software”) and related services (“Services”) and set forth each party’s rights and obligations in relation to Software and Services.

IF YOU DO NOT AGREE TO ALL OF THE TERMS OF SERVICE, OR IF YOU ARE NOT AUTHORIZED TO AGREE TO THESE TERMS ON BEHALF OF THE CUSTOMER, THEN DO NOT SUBSCRIBE TO, REGISTER FOR, ACCESS, OR USE, THE SOFTWARE OR SERVICES. USING ANY COVETRUS SOFTWARE OR SERVICES, INCLUDING REGISTRATION FOR THE SOFTWARE OF SERVICES, OR OTHERWISE ACCESSING ANY PART OF THE SOFTWARE OR SERVICES WILL CONSTITUTE EXPLICIT ACCEPTANCE OF, AND CREATE A LEGALLY ENFORCEABLE CONTRACT UNDER WHICH YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF SERVICE, WITHOUT MODIFICATION.

  1. 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 define interactions between multiple software intermediaries.
      3. “Authorized User” means any employee, contractor, officer or agent of Your business authorized by Customer to use Software and receive Services;
      4. “Business Day” means a day other than a Saturday, Sunday or public holiday in Customer’s country of residence;
      5. “Covetrus” means Covetrus Software Services Pty Ltd.
      6. “Covetrus Website” means https://software.covetrus.com/emea/or any other URL address notified to You by Covetrus from time to time, including http://www.covetrus.com/legal/;
      7. “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;
      8. “Customer Data” means any data, information or material that Customer provides or makes available in the course of using the Services;
      9. “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;
      10. “Effective Date” means the date of the signature hereunder.
      11. “Fees” means the Subscription Fees and Services Fees (if any);
      12. “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;
      13. “Order Form” means the order form provided to Customer by Covetrus and signed by Customer;
      14. “Privacy Policy” means the Covetrus Privacy Policy, as amended from time to time, and located at http://www.covetrus.com/legal/;
      15. “Related Company” includes any subsidiary, affiliate, or successor in interest, or any of its shareholders, directors, officers, employees, agents or nominees;
      16. “Services” means implementation and other services (if any), as may be more particularly described in the Order Form;
      17. “Services Fees” means the fees for Services (if any), as set out in the Order Form;
      18. “Software”or “Ascend”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;
      19. “SOW” means any mutually-agreed-upon statement of work issued subject to this Agreement.
      20. “Subscription Fee” means the monthly subscription fees payable for Your access and use of Software;
      21. “Subscription Term” has the meaning given in clause 11.1;
      22. “Third-Party Provider” has the meaning given in clause 10.5(a);
      23. “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 the Subscription Agreement and the Terms of Service, and except as expressly specified in any part, the Terms of Service will prevail.
  2. Warranties and Liability
    1. Covetrus warrants that:
      1. subject to clause 2.2, Software and any Services will materially conform to the Specifications set forth in Documentation; and
      2. all Services will be performed in a professional manner in accordance with prevailing industry standards to maintain the security of the Services and minimize errors and interruptions in the Services, provided that: (i) Customer uses the Service and the Software strictly in accordance with the Documentation, (ii) Customer pays all amounts due under this Agreement and is not in default of any provision of this Agreement, and (iii) Customer makes no changes (nor permits any changes to be made other than by or with the express approval of Covetrus) to the Software or Service. In addition, Customer acknowledges that the Services may be temporarily unavailable for scheduled maintenance, for unscheduled emergency maintenance, or because of other causes beyond Covetrus’s reasonable control (including without limitation delays or other problems inherent in the user of the Internet and electronic communications services). Covetrus will not be liable to Customer as a result of these temporary service interruptions.
    2. As Customer’s sole and exclusive remedy for nonconformity of Services or Software with this limited warranty, Covetrus will use commercially reasonable efforts and at no charge to Customer, to correct any reported nonconformity. Customer must promptly notify Covetrus in writing outlining the specific details upon discovery. This limited warranty shall not apply if the failure of Services or Software to conform is caused by (i) use or operation of Services or Software with an application, in an environment, or in a manner other than as set forth in this Agreement , or (ii) modifications to Services or Software not made by Covetrus or Covetrus-authorized representatives.
      1. If a reported nonconformity cannot be corrected, either party may terminate the Agreement by giving written notice to the other party, in which case Covetrus will refund to Customer all Subscription Fees pre-paid to Covetrus on a prorated basis.
    3. Covetrus does not warrant:
      1. that use of Software will be uninterrupted or error-free or that Software is free of Viruses;
      2. that Covetrus can prevent a breach of its system or data loss during a breach;
      3. that Software, Documentation and/or the information obtained by You through Software will always be available, either in its current form or at all;
      4. that Software, Documentation and/or the information obtained by You through Software will meet Your requirements;
      5. the accuracy, correctness, reliability and completeness of any information, analysis, calculation, or report provided through the use of Software (together referred to as “Results”). To the maximum extent permitted by law, Covetrus will not be liable for any form of loss or damage, arising out of or in connection with Your reliance on and use of the Results.
    4. You acknowledge that:
      1. Covetrus may rely on provision of services by third parties (including data center, electricity, telecommunications, and outsourcing providers) in order to provide Software (“Third Party Providers”) and that Software may be subject to limitations, delays and other problems inherent in the use of such services provided by Third Party Providers; and
      2. Covetrus will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or is in connection with any services provided by Third Party Providers, including any delays, delivery failures, or any other loss or damage resulting from transfer of data over communications networks and facilities, including the internet.

      THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE.

    5. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, ANY STATUTORILY REQUIRED WARRANTIES SHALL BE LIMITED AS PROVIDED HEREIN. COVETRUS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF COVETRUS.EXCEPT AS STATED IN THIS SECTION, COVETRUS DOES NOT REPRESENT OR WARRANT THAT CUSTOMER’S USE OF SERVICES OR SOFTWARE WILL BE SECURE, UNINTERRUPTED OR ERROR FREE. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COVETRUS IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT. THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE.
    6. Customer shall indemnify, hold harmless, and, at Covetrus’ option, defend Covetrus from and against 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 (“Losses”), incurred by Covetrus resulting from:
      1. any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that Customer Data or any use of same in accordance with this Agreement infringes or misappropriates, or is alleged to infringe or misappropriate such third party’s Intellectual Property Rights;
      2. any claims against Covetrus based on Customer’s or any Authorized User’s negligence or willful misconduct or use of Software or Services in a manner not authorized by this Agreement;
      3. any claims against Covetrus resulting from a security breach or vulnerability; and
      4. any breach by Customer of the Agreement.
    7. Covetrus shall indemnify, defend, and hold harmless Customer from and against any and all Losses arising from or relating to any Third-Party Claim that Software, Service, or any use of same in accordance with this Agreement or Ancillary Agreements, infringes or misappropriates such third party’s Intellectual Property Rights, subject to the following provisos:
      1. Covetrus’s obligation is conditional on the Customer: (a) as soon as reasonably practicable, giving prompt written notice of the claim to Covetrus, specifying the nature of the claim in reasonable detail; (b) not making any admission of liability, agreement or compromise in relation to the claim without the prior written consent of Covetrus; (c) giving Covetrus and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable Covetrus and its professional advisers to examine them and to take copies (at Covetrus’s expense) for the purpose of assessing the claim; and (d) taking such action as Covetrus may reasonably request to avoid, dispute, compromise or defend the Claim.
      2. Customer shall: (i) grant Covetrus, at its option, sole control of the defense or settlement of such suit or claim and (ii) reasonably cooperate with Covetrus, at Covetrus’s expense, in its defense or settlement of the suit or claim.
      3. To the extent that Covetrus is prejudiced by Customer’s failure to comply with the foregoing requirements, Covetrus shall not be liable.
    8. If such a Third-Party Claim is made or either party anticipates such a Third-Party Claim will be made, Customer agrees to permit Covetrus, at Covetrus’s sole discretion, to (A) modify or replace Software, Services, or components or parts thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Covetrus determines that neither alternative is reasonably available, Covetrus may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately upon written notice to Customer. This Section sets forth Customer’s sole remedies and Covetrus’s sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that Software or Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. This Section will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party products.
      THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE
    9. IN NO EVENT SHALL COVETRUS OR ITS AFFILIATES BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INVESTMENT LOSSES OR INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL). THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE UNAVAILABILITY OF ANY REMEDY PROVIDED HEREIN.
    10. Covetrus will not be liable to Customer, Authorized Users, and Customer’s Related Companies for loss of profits, loss of revenue, loss of data, or any indirect, consequential, or special loss or damage suffered or incurred by Customer, Authorized Users, and/or Customer’s Related Companies arising out of or in connection with the Agreement or Customer’s use of Software.
    11. Covetrus’s total liability arising out of all claims for loss or damage under the Agreement will not exceed in the aggregate an amount equal to the lesser of (a) the total amount of Subscription Fees and Services Fees actually paid by Customer to Covetrus in the 12 months prior to the time the liability arises and (b) USD 25,000.
    12. You agree to defend, indemnify, and hold harmless Covetrus, its limited partners and subsidiary companies, and its and their affiliates, officers, directors, employees, and representatives, from all liabilities, claims, and expenses, including attorneys’ fees that arise from your use or misuse of the Service. Covetrus reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Covetrus in asserting any available defenses.
  3. Intellectual Property Rights
    1. Customer acknowledges and agrees that Covetrus and/or its licensors own all Intellectual Property Rights or licenses in the:
      1. Software;
      2. Covetrus Website;
      3. Customer Data;
      4. Documentation; and
      5. Covetrus branding, trade names and trademarks (“Covetrus Branding”), together with all modifications, enhancements and other developments to Software, Covetrus Website, and Documentation(whether or not recommended or suggested by Customer).
    2. Except as expressly stated in this Agreement, this Agreement does not grant You any rights to, or in, Intellectual Property Rights, or any other rights or licences, in respect of Software, Covetrus Website, Documentation or Covetrus Branding.
  4. Customer Data
    1. All Customer Data shall be governed by Covetrus’ Privacy Policy, Data Processing Addendum, and this Agreement, which the Customer agrees to abide by.
    2. Each party shall comply with its applicable duties under applicable data protection legislation.
    3. Customer retains all rights to its Customer Data. Customer is owner or licensor and controller and exporter of Customer Data. Covetrus acknowledges and agrees Customer will have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data, for obtaining all legally-required consents for, and complying with all data protection laws applicable to, use of Customer Data in Software, for examining and confirming results before using them, and for adopting procedures for identifying and preventing errors in Customer Data.
    4. Each party will take appropriate technical and organisational measures against unauthorized or unlawful processing of Customer Data or its accidental loss, destruction, or damage. Covetrus will not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party.
    5. You expressly consent to the transmission, collection, storage, processing, and use of your data from, to and within the United Kingdom, in addition to the country where you are located (if not the United Kingdom). Covetrus makes no representation that the Service is accessible, appropriate or legally available for use in locations outside the United Kingdom, and accessing and using the Service (including with regard to the provision, collection or processing of data) is prohibited from territories where doing so would be illegal. If you access or use the Service from other locations, then you do so at your own initiative and risk and are solely responsible for compliance with local laws.
    6. Customer acknowledges and agree that Covetrus may use Customer Data for the purposes of:
      1. performing Covetrus’s obligations under the Agreement;
      2. ensuring Customer is complying with the terms and conditions of the Agreement;
      3. improving or enhancing Software;
      4. performing data analysis on an aggregated and anonymous basis; and
      5. except where Customer has opted-out:
        1. assessing performance of Customer’s business, including comparing or benchmarking such performance against performance of Covetrus’s other customers;
        2. assessing what other services Covetrus may provide and promote to Customer, including offering services that may assist in improving performance; and
        3. monitoring Customer’s use of Software and Documentation and collecting and compiling data and information related to Customer to be used by Covetrus in an aggregated and anonymized manner (“Aggregated Statistics”). As between Covetrus and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Covetrus. Covetrus may compile Aggregated Statistics based on Customer Data input into Covetrus Ascend, may (i) make Aggregated Statistics available to third parties in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not contain personal data as such term is understood by the UK Data Protection Act 2018 (or any successor legislation).
  5. Customer’s Obligations
    1. Customer shall:
      1. provide Covetrus all necessary co-operation in relation to this Agreement, and all necessary access to such information as may be required by Covetrus, so that Covetrus can provide Software and Services (if any) to Customer, including but not limited to Customer Data, security access information, configuration services and servers. Customer warrants that it is authorized to provide the foregoing information and/or access to Covetrus;
      2. comply with all applicable laws (including applicable privacy and data protection laws, and obtain all legally required consents, in respect of Customer’s collection, use, processing and disclosure of any personal information included in Customer Data), with respect to use of Software and Customer’s activities under this Agreement;
      3. carry out all of the responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in Customer’s provision of such assistance, Covetrus may adjust any agreed timetable or delivery schedule as reasonably necessary;
      4. use Software and Documentation in accordance with the terms contained in this Agreement and Ancillary Agreements;
      5. ensure Customer’s network and systems comply with the relevant specifications specified by Covetrus from time to time;
      6. be solely responsible for procuring and maintaining Customer’s network connections and telecommunications links from Customer’s systems to the Covetrus’s Website, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links caused by the internet;
      7. grant Covetrus a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display Customer Data and perform all acts with respect to Customer Data as may be necessary for Covetrus to provide Services, as well as a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use, market, sell, and display Customer Data incorporated within the Aggregated Statistics; and ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. Customer is solely responsible for development, content, operation, maintenance, and use of Customer Data.
  6. General
    1. Applicable law and dispute resolutio
      1. A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Service or Terms of Service (including any Policy) to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and Covetrus agree that any claim or legal proceedings arising out of or related to the Service must be commenced within one (1) year after the cause of action arose failing which such claim or cause of action shall be permanently barred.
      2. The Terms of Service shall be governed by and construed in accordance with the laws of Queensland, Australia. All disputes between the parties arising out of or in relation to or in connection with this Agreement shall be subject to the exclusive jurisdiction of the Australian courts, provided that either party may seek an injunction or other equitable relief from any court of competent jurisdiction. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ALL CLAIMS MAY TAKE PLACE ONLY ON AN INDIVIDUAL BASIS; AND CLASS ACTIONS ARE NOT PERMITTED. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THE TERMS OF SERVICE OR USING THE SERVICE, YOU AND COVETRUS ARE EACH WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
      3. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service, including without limitation, this section.
  7. Contact
    1. If you have questions regarding the Terms of Service, you may contact Covetrus at the following address and email: support@covetrus.com, Covetrus, Inc, 7 Custom House Street, Portland, ME 04101
  8. Covetrus Party
    1. In the case of any Order Form stated to be agreed by an Affiliate of Covetrus (i.e. other than Veterinary Solutions 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.
  9. 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.
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