Covetrus Pulse™ Terms of Service
This Covetrus Pulse Terms of Service (“Agreement”) is made as of the Effective Date by and between Covetrus Software Services LLC, on behalf of itself and its affiliates and subsidiaries (“Covetrus”) and Covetrus’ client (“Client”) Covetrus and Client may be referred to individually as a “Party” and collectively as the “Parties”).
SECTION A GENERAL TERMS AND CONDITIONS
NOW THEREFORE, in consideration of the mutual promises and understandings set forth herein, the Parties agree as follows:
Services. During the term of this Agreement, Client may access the Services for internal use only. Covetrus retains all rights, title, and interest in and to the Services including without limitation all software included in and used to provide those Services. This Agreement does not grant Client (a) any right to reproduce, modify, distribute, or publicly display or perform the software included in the Services or (b) any other right to the Services not specifically set forth herein.
Definitions.Any capitalized term used but not defined in section B below shall have the meaning given to it in the Agreement.
Client Obligations.
Client shall:
be responsible for determining the level of access that each Authorized User has to access and use the Service. Covetrus shall not be responsible for Client’s use, or inability to use, the Services arising out of or in connection with any act or omission by any Authorized User;
maintain a written, up to of date list of current Authorized Users and provide such list to Covetrus within five (5) Business Days after Covetrus’ written request thereof;
keep secure logins and passwords for Authorized Users access and use of the Services and keep such logins and passwords confidential;
notify Authorized Users, and ensure that Authorized Users understand and agree, that their use of Services is subject to the terms and conditions set out in this Agreement;
allow Covetrus to audit Client’s use of Services, at a time and in a manner as mutually agreed upon by the parties which shall not exceed one time per 12 month period, in order to establish whether such use is in accordance with the Agreement;
on demand, pay Covetrus an amount of any underpayment of Fees discovered by Covetrus through undertaking the audits referred to above.
prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, Client shall promptly notify Covetrus of any unauthorized access upon becoming aware of the unauthorized access.
Be responsible for any acts or omissions by Authorized Users relating to the use of the Services the same as if Client had committed the act or omission itself.
Client shall not:
exceed the number of Authorized Users as permitted and stated in the applicable Order Form;
attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Covetrus’ software used to provide the Services;
access all or any part of the Services to build a product or service that competes with the Services;
make the Services available to any third party except Authorized Users in accordance with the Agreement;
use or publish any of Covetrus’ branding, trademarks, or logos without Covetrus’ prior written permission, which Covetrus can revoke at its sole discretion; or
otherwise access or use the Services beyond the scope of the authorizations granted hereunder.
Changes to number of Authorized Users.
Should Client require a change in the number of Authorized Users reflected in the applicable Order Form Client may request such change by notifying Covetrus. If agreed upon by Covetrus, then Covetrus shall issue a new Order Form reflecting the change in Authorized Users and make the appropriate change on Client’s account.
Should Client decrease the number of Authorized Users, no refunds will be paid, or credited, in respect of any unused portion of any Subscription Fees. If Client increases the number of Authorized Users, Covetrus will charge Client for any net amount due for additional Authorized Users in the immediately following invoice.
Charges and Payment.
Client shall pay Fees to Covetrus in accordance with this Agreement and the Order Form. Covetrus shall also charge for any customization, specialized features, or functionalities as requested by the Client.
The Fees and any further charges, including their amount, calculation methods, and payment terms, will be communicated to the Client prior to the provision of Services. These Fees may be subject to change, and any modifications will be communicated in advance.
Covetrus reserves the right to collect Fees retrospectively for Services provided but not yet invoiced.
Payment of each invoice will be electronically processed byCovetrus on the due date by either ACH or direct credit from Client’s nominated bank account. Client shall maintain a current direct debit authorization for Covetrus to debit Client’s bank account for amounts due under this Agreement. Client represents that the account information, physical address, email address, and other information provided by Client to Covetrus is true and accurate in all respects and agrees to update such information promptly if it is or becomes incorrect or outdated.
Client shall be responsible for the timely payment of all Fees and any further charges as shown in the applicable Order Form. Covetrus may charge Client an interest rate of 4% per month or the highest rate permitted by applicable law, whichever is lower, accruing from the due date of the outstanding Fees until such Fees are paid. In the event that Covetrus incurs costs to collecting the outstanding Fees, Client shall reimburse Covetrus for all costs of collection, including legal fees.
Taxes. All Fees and any associated charges as stated on the Order Form shall be exclusive of all applicable taxes, levies and duties. If Client is required by law, or otherwise, to deduct or withhold taxes or charges from any amounts due to Covetrus under the Agreement or any Order Form, then such amounts shall be increased so that the payment actually made to Covetrus is equal to the amount due to Covetrus as if no such taxes or charges had been deducted, withheld or charged.
Confidentiality & Restrictive Covenants
Confidential Information. The Recipient will treat all Confidential Information as confidential and proprietary. Recipient will not disclose Confidential Information to any third party, nor use that information, directly or indirectly, other than as contemplated by this Agreement or as required by applicable law, without the express written consent of the Disclosing Party.
Ownership of Information. Documents or other media or materials containing information (including in electronic format) of the Disclosing Party that both Parties are required to keep confidential hereunder will remain the property of the Disclosing Party and those materials (along with all copies thereof) will be returned to disclosing Party or destroyed, as directed by Disclosing Party, upon termination of this Agreement, or when requested by Disclosing Party.
Ownership of Intellectual Property. Each Party retains all rights, titles and interests in its intellectual property rights. Except as expressly provided herein, nothing herein grants any Party the intellectual property rights of the other Party.
Term and Termination.
Term. The term of this Agreement begins on the Effective Date, and unless terminated as permitted hereunder, continues for a period of three years (the “Initial Term”). Upon expiration of the Initial Term, this Agreement will automatically renew for additional one-year terms (each a “Renewal Term”) unless either Party gives the other party at least 90 days’ prior written notice of its intent not to renew this Agreement.
Termination for convenience. Covetrus may terminate this Agreement, without cause, by giving the Client 90 days’ prior written notice.
Termination for cause. A Party may terminate this Agreement or any SOW (i) for any material breach not cured within 30 days following written notice of such breach, (ii) immediately upon written notice if the other Party files for bankruptcy, becomes the subject of any bankruptcy proceeding or becomes insolvent; (iii) immediately upon written notice of a Force Majeure event (defined below) for 10 or more consecutive business days, so long as such notice is given no later than five business days after the conclusion of such Force Majeure event; (iv) where either Party is prohibited from the performance or receipt of Services by order of any governmental authority or court of competent jurisdiction.
Regulatory Termination. If any law, rule, or regulation is enacted or modified or there is any substantial change in the judicial, administrative, or regulatory agency interpretation of an existing law, rule, or regulation, in a manner that materially and adversely affects a Party’s ability to perform under this Agreement, or to realize the intended benefits of this Agreement, or if any governmental entity determines that this Agreement is illegal or in violation of any law, rule, or regulation, then either Party may terminate this Agreement immediately by written notice to the other Party.
Suspension. Covetrus may suspend all access to and use of the Services by Client or any Authorized User immediately in the event of any breach or threatened breach of this Agreement and will provide notice to Client of such suspension as soon as reasonably practicable.
Notices. All notices, requests and other communications under this Agreement shall be given in writing and sent to the mailing addresses below:
If to Client: Contact details provided in the applicable Order Form.
If to Distributor: Covetrus North America, LLC
12 Mountfort Street
Portland, Maine 04101 USA
Attn: President
With a copy to (which copy does not constitute notice):
Covetrus, Inc.
12 Mountfort Street
Portland, Maine 04101 USA
Attn: Legal Department
Service Levels. For each Service Period, Covetrus shall commit to the Services Availability at a Monthly Uptime Percentage of 98.5. The Services are not considered Available in the event of a material performance degradation or inoperability of the Services, in whole or in part.
Scheduled Maintenance. Covetrus shall notify Client at least 24 hours in advance of all scheduled maintenance. Covetrus will use commercially reasonable efforts to make any scheduled maintenance:
last no longer than four (4) hours;
be scheduled between the hours of 12 a.m. and 5 a.m. Eastern Standard Time; and
occur no more frequently than once per week; provided that Covetrus may request Client’s approval for more frequent scheduled maintenance, which approval may not be unreasonably withheld or delayed.
Support and Maintenance. Covetrus shall provide support services for the Services in accordance with the provisions of this Section 12(c). The Support Services are included in the Services, and Covetrus shall not assess any additional fees, costs, or charges for such Support Services.
Support Service Responsibilities. Covetrus shall make reasonable efforts to:
Correct Service errors in accordance with this Agreement, including by providing defect repair, programming corrections, and remedial programming, and provide telephone support during the hours of 8 a.m. to 8 p.m. Central Time on business days;
Provide online access to technical support bulletins and other user support information and forums, to the full extent Covetrus makes such resources available to its other clients; and
respond to and resolve support requests as specified in this Section 12.
Service Monitoring and Management. Covetrus shall make commercially reasonable efforts to monitor and manage the Services to optimize Availability that meets or exceeds the Monthly Uptime Percentage.
Third Party Service Providers. Covetrus may rely on provision of services by third parties in order to provide Services, and, as a result, Services may be subject to limitations, delays and other problems inherent in the use of the Services that is not under the control of Covetrus. Covetrus will not be responsible for any delays, delivery failures, or any other loss or damage arising out of or in connection with any services provided by any third party service providers.
Feedback rights. Parties agree that any Feedback Client or an Authorized User provides to Covetrus shall not be deemed Confidential Information and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement shall restrict Covetrus’ right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Client or the Authorized User.
Transition Services. After either Party’s notice of termination, Covetrus shall assist Client with transition to an alternative vendor or to in-house operations pursuant to Covetrus’ then-standing transition policies (the “Transition Services”); provided that (a) Covetrus has no reasonable basis to believe that Client is in breach of this Agreement and (b) Client pre-pays Covetrus’ standard fees for Transition Services. Covetrus has no obligation to provide Transition Services or retain any data related to providing the Services to Client after termination of this Agreement.
Client Data. Covetrus acknowledges that, as between Covetrus and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to Client Data. Client hereby grants to Covetrus a non- transferable, non-exclusive, royalty-free, worldwide license to reproduce, distribute, and use and display the Client Data solely to the extent necessary for Covetrus to provide the Services to Client, and to the extent that Covetrus is required to disclose and retain such Client Data in compliance with local, state, and federal regulations, manufacturer anti-diversion programs, or for legal or regulatory compliance purposes. All use of Client Data shall be in compliance with this Agreement, Covetrus’ Data Processing Agreement (Covetrus Data Processing Addendum), and Covetrus’ Privacy Policy (Privacy Policy – Covetrus), as may be updated from time to time, at the discretion of Covetrus, but in no event shall any update materially limit Client’s rights or Customers’ rights to privacy in such Client Data.
Analytics Data and Proprietary Trade Secrets
Analytics Data as Proprietary Trade Secrets.
Parties agree that Covetrus shall have the right to perform Analytics on any data collected or generated by Covetrus during the course of providing the Service.
The Client acknowledges, understands, and agrees that the Proprietary Trade Secrets constitute proprietary trade secrets of Covetrus. The Proprietary Trade Secrets are proprietary, sensitive, and confidential, and the unauthorized disclosure or use thereof would cause irreparable harm to Covetrus’ business, operations, competitive position, and future prospects.
Protection of Proprietary Trade Secrets. The Client agrees to maintain the confidentiality of Covetrus’ Proprietary Trade Secrets and to not access, use, disclose, disseminate, copy, reproduce, reverse engineer, derive or otherwise make available any works from Covetrus’ Proprietary Trade Secrets, whether in whole or in part, except as expressly permitted under this Agreement or with the prior written consent of Covetrus. The Client further agrees to implement all necessary and reasonable measures to prevent unauthorized access to or use of Covetrus’ Proprietary Trade Secrets.
Exclusion of Client’s Right. The Client unequivocally relinquishes any right, claim, or expectation to access, review, or derive benefit from Covetrus’ Proprietary Trade Secrets. This exclusion applies regardless of the format, level of detail, or medium of the Proprietary Trade Secrets, and includes, without limitation, any Analytics Data, as well as any interpretations, insights, predictions, scores, or models derived from the Analytics Data.
Survival of Obligations. The obligations under this section shall survive the termination or expiration of this Agreement for any reason.
Equitable Relief. Client acknowledges that any breach or threatened breach of the provisions of this Agreement could result in serious and irreparable injury to Covetrus for which Covetrus may not be adequately compensated by money damages alone. Client agrees that in the event of such a breach or threatened breach by it, in addition to any other remedy Covetrus may have at law or in equity, Covetrus is entitled to seek specific performance of such provisions and to seek both temporary and permanent injunctive relief (to the extent permitted by law) without the requirement of posting a bond.
Non-Exclusivity. Client acknowledges that Covetrus may provide similar Services as those being provided to Client to third parties.
Independent Contractor. The Parties’ relationship is that of an independent contractor, and nothing in this Agreement creates a partnership, agency, joint venture, employment or similar relationship. Neither Party is entitled to any of the benefits that the other Party may make available to its employees, including but not limited to, group health or life insurance, workers compensation, payroll tax deductions, profit- sharing or retirement benefits, or any other benefit.
Covetrus Warranties. Covetrus represents, warrants and covenants to Client that Covetrus will provide commercial reasonable efforts in the perform of the Services, provided that (i) Client has not used the Services with an application, in an environment, or in a manner other than as set forth in the Documentation or upon prior consent from Covetrus and (ii) no modifications were made to the Services by anyone than Covetrus without Covetrus’ prior written consent.
Mutual Warranties. Each Party represents, warrants and covenants to the other that: (i) the terms of this Agreement do not violate any existing agreements or other obligations to which it is bound; and (ii) it has the requisite legal authority to enter into this Agreement; and (iii) that it shall comply with all laws applicable to its performance hereunder.
Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other, which consent may not be unreasonably withheld; provided, however, that either Party may assign this Agreement to any affiliate, or to a person or entity into which it has merged or which has otherwise succeeded to all or substantially all of its business or assets to which this Agreement pertains, by purchase of stock, assets, merger, reorganization or otherwise and which has assumed in writing or by operation of law its obligations under this Agreement; provided further, however, that Client may not assign this Agreement to a direct competitor of Covetrus. Any assignment or attempted assignment in breach of this Section 23 is void. This Agreement is binding upon and inures to the benefit of the Parties’ respective successors and assigns.
Indemnification. Each Party shall indemnify, defend, and hold harmless the other Party from and against any and all actions, liabilities, losses, damages, claims and demands, whatsoever, of or by a third party, including costs, expenses, and attorneys’ fees resulting from or claimed to have resulted from any intentional, fraud or gross negligent acts or omissions of the indemnifying party or its employees or agents engaged in the work under this Agreement at the time of the event or occurrence upon which such actions, claims, or demands are based. In addition, Client shall indemnify, defend, and hold harmless Covetrus from and against any and all actions, liabilities, losses, damages, claims and demands, whatsoever, of or by a third party, including costs, expenses, and attorneys’ fees resulting from or claimed to have resulted from (a) Covetrus’ use of Client Data in accordance with this Agreement; and/or (b) Client’s misuse of the Services. If both Parties, including their respective employees or agents, jointly caused the liability, then each Party must contribute to the common liability a pro rata share based upon its relative degree of fault. If an indemnification obligation is triggered under this Agreement, then (a) the Party seeking indemnification will promptly provide the indemnifying Party with notice of the claim, suit, event, or issue pertaining to the indemnification, (b) the Party seeking indemnification will permit the indemnifying Party to have sole control of the defense of the claim or suit and provide reasonable cooperation to the indemnifying Party with regard thereto (provided that the indemnified Party retains the ability to participate in the defense at its own expense), and (c) no settlement shall be entered into on behalf of the indemnified Party that does not include a full release of liability in favor of the indemnified Party, without the indemnified Party’s prior written consent.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, 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. COVETRUS DOES NOT REPRESENT THAT CLIENT’S USE OF THE SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR FREE. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COVETRUS IN ANY MEANS OR FASHION CREATES ANY WARRANTY THAT IS NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
LIMITATION ON LIABILITY. THE AGGREGATE LIABILITY OF A PARTY, ITS SERVICE PROVIDERS, OR CONTRACTORS, ARISING UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CLIENT TO COVETRUS UNDER THIS AGREEMENT WITHIN THE PRECEDING TWELVE (12) MONTHS, EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 24 OF THIS AGREEMENT, THE PARTIES’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS OBLIGATIONS UNDER THIS AGREMENT, THE PARTIES’ CONFIDENTILIATY OBLIGATIONS UNDER SECTIONS 7 AND 17 OF THIS AGREEMENT, OR CLIENT’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY OR THEIR SERVICE PROVIDERS, OR CONTRACTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DAMAGES FOR COVER OR LOSS OF USE, LOSS OF DATA, LOSS OF REVENUE OR LOSS OF PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT FOR CLIENT’S OBLIGATIONS UNDER SECTION 17. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
Force Majeure. Neither Party incurs any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if and to the extent that the delay or failure is caused by events, occurrences, or causes beyond the control and without negligence of the Parties, including, without limitation, acts of God, pandemics, strikes, lockouts, riots, acts of war, earthquakes, fire and explosions, but the inability to meet financial obligations is expressly excluded.
Governing Law. This Agreement is governed by and construed under the laws of the State of Delaware without regard to its choice of law rules.
No Waiver. The failure of either Party to insist upon the strict performance by the other Party of any provision of this Agreement, or to exercise any right or remedy consequent upon a breach thereof, shall not constitute a waiver of such breach or of such provision or any other provision of this Agreement. The failure of either Party to exercise its rights to enforce any provision of this Agreement shall not prevent such Party from fully exercising its rights or enforcing any provision at another time.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute a single instrument. Signatures submitted via electronic signature shall have the same force and effect as originals.
Severability. Each provision, paragraph and subparagraph of this Agreement constitutes a distinct and separate covenant, and if any provision, paragraph, or subparagraph is adjudged by any court of law or arbitrator to be void or unenforceable in whole or part, such adjudication shall not be deemed to affect the validity of the remainder of this Agreement or, or of any other provision, paragraph, or subparagraph of this Agreement.
Survival. Provisions of this Agreement that are intended to survive termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive.
Headings. The headings of sections included in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this Agreement.
No Implied License. Nothing in this Agreement grants to either Party any rights under any patents, trademarks or other intellectual property of the other Party except as specifically delineated in this Agreement. Any license rights in this Agreement are contingent upon the licensee Party performing all of its obligations under this Agreement. The removal or waver of any contingency requires the written approval of both Parties. Notwithstanding this Section 34, upon express prior written consent in each instance, Covetrus shall be allowed to use Client’s name on its website and in other marketing materials as demonstration of having provided services for Client.
Amendment; Entire Agreement; Precedence. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and executed by authorized representatives of Covetrus and Client. This Agreement, including all terms attached hereto or incorporated herein by reference, constitutes the complete and exclusive statement of the Parties’ agreement as to the subject matter hereof and supersedes all proposals, requirements documents, discussions, presentations, responses to questions, or prior agreements, commitments or promises, oral, electronic or written, between the Parties or provided by one Party to another relating to the subject matter hereof. Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on and shall have no remedy or right of action with respect to any statement, undertaking, promise, assurance, warranty, understanding or any representation or misrepresentation (whether contractual or non-contractual and whether negligently or innocently made) relating to the subject matter of this Agreement and other than as expressly set out in this Agreement as a warranty, in writing or not and made by or to any person. Nothing in this Section 35 limits or excludes any liability for fraud. Neither Covetrus’ acceptance of Client’s order nor its failure to object elsewhere to any provisions of any subsequent document, website, communication, or act of Client is deemed acceptance thereof or a waiver of any of the terms of this Agreement.
SECTION B SPECIAL TERMS AND CONDITIONS ONBOARDING
Onboarding Services.
Covetrus shall provide the following onboarding services (“Onboarding Services”) to those Clients who have subscribed to Covetrus® Pulse™:
Data Conversion;
Documentation, user guides and online help resources that Authorized Users can access to learn more about Covetrus® Pulse™;
Authorized User testing and feedback appointments to identify areas where Authorized Users for targeted support;
Assistance with initial setup and configuration of Covetrus® Pulse™; and
Ongoing support and assistance to Authorized Users, on an as needed basis, for the duration of the applicable Order Form.
Project Manager. Both Parties agree to assign an individual to act as their respective project manager for the implementation of the Onboarding Services. Client’s project manager shall be identified in the applicable Order Form or as agreed upon between the Parties, and it is expressly agreed that Client’s project manager shall act as an authorized decision maker on behalf of the Client. Covetrus shall appoint a trainer who shall act as the Covetrus’ project manager for the implementation of the Onboarding Services and shall coordinate and plan the Onboarding Services with Client’s project manager.
Onboarding Services Timeline. Onboarding Services shall commence on the dates indicated on the Onboarding Services appointment schedule (the “Schedule”) within the Onboarding Services Implementation Guide (“Implementation Guide”), which will be provided to the Client. Covetrus shall make commercially reasonable efforts to adhere to the Schedule but reserves the right to make changes as it deems necessary. Client commits to remain engaged and follow the mutually agreed upon schedule.
Participation and Rescheduling. In the event that Client is unable to attend an appointment, Client shall notify Covetrus at least 24 hours in advance of the appointment to reschedule to a mutually convenient time. Failure to so notify Covetrus will result in forfeiture of that appointment and may result in delays or additional fees for Client.
Individual Onboarding Services Appointments. If Client misses more than one appointment without providing prior notice to Covetrus, Covetrus reserves the right to charge Client a fee as stipulated in the applicable Order Form per each individual Member Practice for each missed appointment. Client acknowledges and agrees that this fee is a reasonable estimate of the damages incurred by Covetrus as a result of the missed appointment. Payment of this fee shall be due within 14 days of the missed appointment. Covetrus reserves the right to cancel appointments, revoke Client’s access to training materials, and/or terminate or suspend Client’s Covetrus® Pulse™ subscription if Client repeatedly misses appointments. Client shall remain responsible for any undisputed fees owed to Covetrus.
Expiration of appointments. All appointments shall automatically expire on the end date of the Onboarding Services, as included in the Schedule, and the Client shall not be entitled to a conversion of Onboarding Services, extension, or refund for any unused appointments.
Trainer availability. The Client acknowledges that their assigned trainer provided by the Covetrus is expected to provide support through the appointments detailed in the Implementation Guide, and that the trainer will not be available once the onboarding project is considered complete.
Additional appointments or services.
Should Client require (i) additional appointment-hours or (ii) additional or custom services beyond the scope of the Onboarding Services, Covetrus may provide such additional services, subject to availability, for an incremental fee to be agreed upon by both parties. Covetrus shall make reasonable effort to accommodate Client’s request for additional services but reserves the right to decline such requests at its sole discretion.
The Parties acknowledge that any additional services provided under this clause shall be subject to the terms and conditions of this Agreement.
Onboarding Services Expectations. Client acknowledges that Covetrus delivers its Onboarding Services on an “as-is” basis and that Covetrus does not guarantee, or commit to, any specific outcome. All templates and content provided by Covetrus are created for reference purposes only and are not intended to be a substitute for the Client’s professional judgement and independent setup, evaluation, testing, and other relevant activities. It is the Client’s responsibility to determine the appropriate configuration of the Covetrus® Pulse™ based on their unique business needs and requirements.
Onboarding Services and Support Availability. The Onboarding Services provided by Covetrus to the Client are available during the standard work week. The standard work week is defined as Monday to Friday, 9:00 AM to 5:00 PM in the Client’s local time zone, excluding public holidays. The Client acknowledges and agrees that any requests for support services outside of the standard work week are subject to availability and at the sole discretion of Covetrus. The Client shall be responsible for any additional fees incurred for support services provided outside of the standard work week.
Data Conversion. Covetrus shall assist the Client with data conversion from their existing system to the Covetrus® Pulse™ (“Data Conversion”). Data Conversion is part of Onboarding Services, where such Data Conversion is required. The following responsibilities are allocated between the parties:
Client’s Responsibility. Client shall provide the initial data pull within 5 business days of initial contact by Covetrus trainer. The Client shall allow access to their on-premise server for data pull by Covetrus or provide Covetrus the required data from their third party Practice Information Management Software (PIMS), during the standard work week. The standard work week is defined as Monday to Friday, 9:00 AM to 5:00 PM Eastern Time, excluding public holidays. Where Client uses a Cloud-based third-party PIMS, Client shall engage with the third party throughout the entire migration process when necessary for the success of Onboarding Services. Should there be any issues with the data, Covetrus may attempt to contact the Client’s third-party provider directly, but it remains the responsibility of the Client to ensure usable data is provided by their current third-party PIMS provider. The Client is responsible for conducting their data audit.
Covetrus’ Responsibility.
Covetrus shall make commercially reasonable efforts to minimize errors and missing data during Data Conversion but cannot guarantee the final quality of the converted data. Covetrus shall provide guidance and assistance to the Client throughout the Data Conversion process.
Covetrus shall not be liable for any missing or corrupted data during the Data Conversion process, regardless of the cause. The Client shall be solely responsible for verifying the accuracy and completeness of the converted data and for implementing any necessary measures to mitigate the risk of data loss or corruption. Covetrus shall not be liable for any damages or losses incurred by the Client as a result of missing or corrupted data, including but not limited to lost profits, business interruption, or data loss. The Client acknowledges that Data Conversion is a complex process and that there may be factors outside of Covetrus’ control that can affect the quality and completeness of the converted data. The Client agrees to hold Covetrus harmless from any claims, damages, or losses arising from or related to missing or corrupted data during the Data Conversion process.
SECTION C DEFINITIONS
”Analytics” means the aggregation, analysis, processing, normalization, correlation, comparison, algorithmic computation, machine learning, artificial intelligence, or other methods of data manipulation or evaluation of data.
“Analytics Data” means any and all data, information, insights, outputs, scores, trends, patterns, predictive or prescriptive models, and interpretations derived from or based on the Analytics of any data collected or generated by Covetrus during the course of providing the Service. This includes, without limitation, data related to user behaviors, preferences, transactions, interactions with the Service, Practice Management Information Systems (PIMS) data, or any other data in any form, whether raw, processed, or otherwise transformed, including any data in a de-identified, aggregated, or anonymized form.
“Available” means the Services are available and operable for access and use by Client and its authorized users over the Internet in conformity with the Specifications. “Availability” has a correlative meaning.
“Authorized Users” means those users Client authorizes to access and use the Services on its behalf.
“Client Data” means the name, address, electronic address, telephone number or any similar information of Client or Customers and related derivative works containing the name, address, electronic address, telephone number or similar information of Client or Customers.
“Confidential Information” means all information and materials obtained by the Recipient from the Disclosing Party, whether in tangible form, written or oral, that is identified as confidential or would reasonably be understood to be confidential given the nature of the information and circumstances of disclosure, including without limitation, the Services, and the terms and pricing set out in this Agreement and any SOWs executed after the date hereof. In the case of Covetrus, Confidential Information shall include Covetrus Property. Confidential Information does not include information that (a) is already known to the Recipient prior to its disclosure by the Disclosing Party; (b) is or becomes generally known to the general public other than disclosure by Recipient in violation of this Agreement; (c) is independently developed by the Recipient without use of or reference to the Disclosing Party’s Confidential Information; or (d) is received from a third party without a known restriction of its use and without a breach of a known obligation of confidentiality by such third party.
“Customers” means the customers of the Client.
“Data Conversion” shall have the meaning set forth in Clause B11.
“Disclosing Party” means the Party sharing the Confidential Information with the other Party.
“Downtime” means the total number of minutes in the relevant Service Period that the Services are unavailable, other than due to (i) acts or omissions of third parties, (ii) scheduled maintenance, (iii) force majeure or (iv) errors of Client or failures of software or equipment not operated by Covetrus.
“Feedback” means any suggestion or idea for improving or otherwise modifying any of Covetrus’ products or services.
“Fees” means the amount stated in the Order Form for Client’s and Authorized User’s access and use of the Services.
“Maximum Available Minutes” means the total number of minutes in the Service Period that the Services should have been available.
“Implementation Guide” shall have the meaning set forth in Clause B3.
“Monthly Uptime Percentage” means the Maximum Available Minutes less Downtime divided by Maximum Available Minutes in a Service Period.
“Onboarding Services” shall have the meaning as set forth in Clause B1.1.
“Order Form” means the order form entered into between the Parties.
“Recipient” means the Party receiving the Confidential Information from the other Party.
“Registration Data” means accurate, current, and comprehensive information about the Client and Member Practices. This information shall include, but is not limited to, the Client’s, or Member Practice’s, full legal name, professional license number, contact information, organization address, tax identification number, and details about its practice type and specialty, as applicable.
“Schedule” shall have the meaning set forth in Clause B3.
“Proprietary Trade Secrets” means that the Analytics Data, the methodologies, algorithms, techniques, and procedures used to produce, generate, derive, or manipulate the Analytics Data, and the specific conclusions, predictions, models, scores, or insights drawn from the Analytics Data.
“Services” means access to and use of Covetrus’ cloud-based veterinarian operating system called Pulse™.
“Service Period” means each calendar month during the term of the Agreement.
“Support Services” means maintenance and support services as provided by Covetrus to Client.