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Subscription Agreement

HEALTH CARE VETERINARY PROVIDER SUBSCRIPTION AGREEMENT 

IMPORTANT! 

READ THIS HEALTH CARE VETERINARY PROVIDER SUBSCRIPTION AGREEMENT  (“AGREEMENT”) CAREFULLY BEFORE INSTALLING, ACCESSING, DOWNLOADING AND/OR USING THE LICENSED PROGRAM SOFTWARE AND RELATED DOCUMENTATION, IF ANY, (COLLECTIVELY, THE “PROGRAM”) IN CONNECTION WITH THE VETMEASURE MEASUREON!™  CANINE HARNESS.  THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN “SUBSCRIBER” (EITHER AN INDIVIDUAL, ON BEHALF OF ITSELF, IF NO ENTITY IS THE BENEFICIAL RECIPIENT OF THE PROGRAM, OR AN EMPLOYEE, AGENT OR REPRESENTATIVE, ON BEHALF OF AN ENTITY THAT IS THE BENEFICIAL RECIPIENT OF THE PROGRAM, THAT PERFORMS THE ACTION OF INSTALLING, ACCESSING, DOWNLOADING AND/OR USING THE PROGRAM) AND VETMEASURE, INC. A COLORADO CORPORATION, HAVING A BUSINESS ADDRESS AT 302 EAST VINE DRIVE, SUITE # 101, FORT COLLINS CO 80524 (“VMI”).  IF THE PROGRAM IS INSTALLED, ACCESSED, DOWNLOADED AND/OR USED, INCLUDING BY REQUESTING THE AUTHORIZATION CODE OR ACTIVATION KEY TO INSTALL THE PROGRAM, SUBSCRIBER IS DEEMED TO HAVE UNCONDITIONALLY ACCEPTED THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS.  FURTHER, BY CLICKING “AGREE” AT THE END OF THIS DOCUMENT, SUBSCRIBER HAS DEMONSTRATED SUBSCRIBER’S UNCONDITIONAL ACCEPTANCE OF THIS AGREEMENT AND THIS AGREEMENT IS EFFECTIVE AS OF THAT DATE (“EFFECTIVE DATE”).  IF SUBSCRIBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT (AS DEMONSTRATED BY CLICKING “DO NOT AGREE”), SUBSCRIBER IS NOT AUTHORIZED TO INSTALL, ACCESS, DOWNLOAD AND/OR USE THIS PROGRAM; AND AS A RESULT, SUBSCRIBER SHALL IMMEDIATELY RETURN, OR IF RECEIVED ELECTRONICALLY, DESTROY THE PROGRAM AND THEREAFTER, CERTIFY DESTRUCTION OF THE PROGRAM.  FOLLOWING RETURN OF THE PROGRAM OR RECEIPT OF CERTIFICATION, SUBSCRIBER WILL RECEIVE A FULL REFUND OF ANY FEE PAID.  THIS AGREEMENT REPRESENTS THE COMPLETE AGREEMENT CONCERNING THE PROGRAM, AND IT SUPERSEDES ANY PRIOR OR CONCURRENT AGREEMENT, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO ANY ASSOCIATED PURCHASE ORDER TERMS AND CONDITIONS UNDER WHICH THE PROGRAM WAS OBTAINED. Notwithstanding the foregoing, SUBSCRIBER may have already accepted a version of the terms and conditions in this Agreement by signing a separate agreement with VMI; and therefore, the individual, employee, agent or representative of the entity must make inquiries of the SUBSCRIBER to determine if such other agreement exists.  If none exists, any action as recited above binds the SUBSCRIBER to this Agreement.  If an agreement has been signed by an authorized representative of SUBSCRIBER, this Agreement shall be considered to supplement the executed agreement but shall not supersede the terms of that executed agreement. VMI and the SUBSCRIBER may be alternatively referred to as party, individually, and parties, collectively.   

  1. PURPOSE.  The purpose of this Agreement is to recite the terms and conditions under which VMI will permit the SUBSCRIBER to access and use VMI’s product and/or service functionality related to monitoring certain physical canine conditions, which includes but is not limited to body temperature, heart rate and respiration rate, for canine patients wearing an unique VetMeasure MeasureON! Canine Harness as supplied by VMI to Subscriber.  This product and/or service is uniquely customized for each SUBSCRIBER, and delivered via an active link accessed over the Internet or via a mobile app.   
  1. DEFINITIONS.  The following terms when used herein shall have the following meanings: 
  1. “Program” is defined as VMI’s algorithmic products and/or services that generally operate and function to ingest and process certain data and information in connection with certain readings (including but not limited to canine body temperature,  heart rate and respiration rate) obtained from an associated canine harness supplied by VMI  utilizing an easy access menu style format that utilizes the data and information that populates the Format to perform algorithmic operations once populated with such data and information to perform treatment planning analytics, and generate reports, spreadsheets, documents or any other embodiments of information, whether in tangible or electronic form, which may be useful as a tool for planning treatment, scheduling treatment and monitoring the effects of treatment.  The Program also provides an associated Online Editor, which allows entry, field and display adjustments in connection with SUBSCRIBER Data within the Format in connection with the generated Report. 
  1. “Access” is defined as the right granted to the SUBSCRIBER by VMI to access and use the Program via an active unique link, which is activated upon full execution of this Agreement and upon payment in full of the appropriate fees as recited in the “Payment and Pricing Schedule”, set forth in “Attachment A”, attached hereto and incorporated herein by reference. 
  1. “Activation Date” is defined as the date that VMI first provides and permits Access to the Program by the SUBSCRIBER by sending an email notice to the SUBSCRIBER that the SUBSCRIBER’s setup has occurred and as a result, enables an active link for the Term of Access. 
  1. “Term of Access” is defined as the length of time that Access is granted to the SUBSCRIBER commencing upon the Activation Date.  The Term of Access is commensurate with the amounts paid under Attachment A and as recited in Section 3. 
  1. “Format” is defined as the expression of display of data and/or information in an online form that may be or is generated as a result of accessing the Program, and typically has the capability of displaying the type and sequence of data and/or information that is processed by the Program. 
  1. “Online-Editor” is defined as the ability of the SUBSCRIBER to manipulate the content populating the Format so as to allow the SUBSCRIBER to manipulate data and information entry, field selection and content display within the selected field.  The-Online Editor function allows the SUBSCRIBER to:  1) upload monitored canine data and information into the Program and thereafter, edit the content to the SUBSCRIBER’s satisfaction and requirements, and 2) refer to the data and information to provide, manage and monitor canine treatment by manipulating the choice of fields, which will be populated with information based on the SUBSCRIBER’s preference and interest.   
  1. “Subscription Tier” is defined as the selected level of functionality provided to the SUBSCRIBER during the Term of Access that adds to and/or enhances the contents of the Report that is generated by the Program.  The Subscription Tier, if applicable, and pricing therefore, will be recited on the VMI web site. 
  1. “Report” is defined as any spreadsheet, document, print-out or other embodiment of information, whether in tangible or electronic form, that is generated by the Program following ingestion of data and information from the Format as provided and input by the SUBSCRIBER, which may be useful to the SUBSCRIBER as a tool in evaluating and analyzing canine health care monitoring and treatment issues.   
  1. SUBSCRIBER Data” is defined as any data or information that is provided by and input into the Format by the SUBSCRIBER and the contents of any Report generated therefrom, and is subject to the Online-Editor function.   
  1. AGREEMENT TERM/TERM OF ACCESS.  The Term of the Agreement shall be for an initial period of One (1) year(s), which shall automatically renew on each anniversary of the Effective Date herein, unless earlier terminated as provided herein under Section 11.  The Term of Access shall be from the effective Activation Date, which commences upon the payment of the fees recited in Attachment A commensurate with the applicable Term of Access based on, if applicable, the selected Subscription Tier.  If no termination occurs under the Agreement and payments remain current for the Term of Access as provided under Attachment A, Access to the Program for, if applicable, the selected Subscription Tier shall remain in effect so long as all fees have been fully paid as provided for in Attachment A for the applicable Term of Access.  The SUBSCRIBER acknowledges that the non-payment of any fees due and owing will, at VMI’s discretion, result in the suspension of Access for the SUBSCRIBER. However, if the SUBSCRIBER remedies the non-payment by making a payment in full of all fees due and owing, then VMI, absent Agreement termination, may reinstate Access for the Term of Access, if applicable, at the selected Subscription Tier commensurate with the fees paid. 
  1. PROGRAM SUBSCRIPTION SCOPE.  During the Term of Access, the SUBSCRIBER acknowledges that the Program applies only to monitoring, processing and analyzing of certain canine information and data that serves as a tool for participating veterinary clinic service providers to provide treatment for canine patients wherein the veterinary practitioners or canine health care providers reside in the United States. The SUBSCRIBER acknowledges that the SUBSCRIBER may engage on the Online-Editor to customize certain portions of the Program to have a look and feel that reflects the SUBSCRIBER’ s practice and branding. The SUBSCRIBER acknowledges that, subject to a required valid and enforceable “Canine Patient Subscriber Agreement” as accepted by the SUBSCRIBER’s existing and new canine patients, the SUBSCRIBER may grant access to certain portions of the Program for patient specific and direct data and information input directly associated with SUBSCRIBER’s existing and new patients. SUBSCRIBER nor SUBSCRIBER’s canine patient guardians may alter, modify or change, in any manner whatsoever, any terms or conditions of the Canine Patient Subscriber Agreement. SUBSCRIBER may additionally allow the Program to generate canine patient specific Reports based on that canine patient’s direct data and information. In the event SUBSCRIBER terminates, for any reason, a canine patient from the Program, SUBSCRIBER needs to provide sufficient and reasonable notice to the canine patient guardian of Program termination. SUBSCRIBER assumes all liability, responsibility and obligations for its canine patients and VMI shall have no liability, responsibility or obligations to such canine patients or their guardian nor shall SUBSCRIBER obligate or bind patient to VMI, in any manner. 
  1. PROPRIETARY INTERESTS/AUTHORIZATIONS/CONFIDENTIALITY
  1. The SUBSCRIBER acknowledges that VMI owns all right, title and interest in and to the Program, Format, On-Line Editor, any VMI Website, any VMI links, and any associated tangible or intangible VMI-provided materials, documents or other embodiments of information or data, and expressions, VMI confidential information under Section 5 (d), including any related, associated or underlying concepts, ideas, methods, and processes; algorithms, source, object, binary, executable code, html and code listings; interfaces, improvements, enhancements, modifications, changes, alterations, versions, releases, updates, error corrections and bug fixes; system(s) and architecture; expressions and derivative works thereof; having patent, copyright, trade secret, trademark, service mark, trade name and any other proprietary interest, whether statutory or common law, which is in existence as of the Effective Date or which is developed, generated, or created by VMI during the Term of Access under this Agreement.  The SUBSCRIBER further acknowledges that any improvements, enhancements, changes, alterations, modifications or derivative works, which are developed, created or generated by the SUBSCRIBER, either jointly with VMI or solely, from the preceding during the Term of Access shall be owned and held by VMI and that the SUBSCRIBER hereby assigns all right, title and interest therein, without further consideration, to VMI to confirm VMI’s ownership thereof.  (collectively, “VMI Property”). 
  1. VMI acknowledges that the SUBSCRIBER owns all right, title and interest in and to the SUBSCRIBER Data, and Report, including any derivative works thereof, (collectively, “SUBSCRIBER Property”).  VMI shall treat SUBSCRIBER Property as confidential and proprietary to the SUBSCRIBER, and refrain from disclosing or releasing to any third party SUBSCRIBER Property, until such SUBSCRIBER Property: i) comes into the public domain through no fault of VMI, or ii) becomes obsolete as is customary in the industry, or iii) is released in writing by the SUBSCRIBER, whichever of the foregoing events occurs first. 
  1. During the effective Term of Access, VMI grants to the SUBSCRIBER the following rights to certain items of VMI Property: i) only the SUBSCRIBER is authorized, on a non-exclusive basis, to access and use certain authorized contents of the Program only via an active link to the Program; ii) only the SUBSCRIBER is authorized, on a non-exclusive basis, to populate the Format with SUBSCRIBER Data and use the Online-Editor in connection therewith, and the SUBSCRIBER shall not display or permit access to the Format by any third party except that SUBSCRIBER may allow under a validly accepted Canine Patient Subscriber Agreement to permit SUBSCRIBER’s existing and new canine patient guardians to input Data and information to certain portions of the Program, as recited under the Canine Patient Subscriber Agreement ; iii) the SUBSCRIBER may not copy, alter, modify or create derivative works of the Format that serves as the basis for the Report; iv) the SUBSCRIBER shall be permitted to generate Reports based on SUBSCRIBER Data and the SUBSCRIBER may disclose, disseminate, distribute, copy, modify, change, alter and create derivative works of the Reports; v) the SUBSCRIBER may only use the Program with VMI provided hardware (canine harness) and vi) the SUBSCRIBER shall not be permitted to disassemble, decompile, reverse engineer, extract, modify, alter, or change or create derivative works of the VMI Property, including but not limited to, the Format and the Program or contents of any VMI Website or disclose, disseminate, distribute, license, assign or transfer the Program, the Format, or any VMI Website, or VMI Property, to any third party.  The authorizations herein do not diminish, in any manner, VMI’s rights, title and interests in VMI Property, including but not limited to the Program or Format, or any VMI Website; and the SUBSCRIBER’s access and/or use of VMI Property, including but not limited to the Format and the Program, is limited to the scope of the authorizations described herein.  The SUBSCRIBER is not permitted to alter, modify, change or, in any manner, affect the integrity or quality of the VMI Property, including but not limited to the Format and the Program, or remove any confidential and/or proprietary notice that appears on the VMI Property, including but not limited to the Format and the Program nor remove, alter or modify any of VMI’s proprietary notices such as, but not limited to, VMI’s copyright notice on the Program, Format, or on any VMI Property.  No other licenses, grants or authorizations under any patent, trademark, copyright, trade secret or other intellectual property, either common law or statutory, is either granted or implied by the provision, distribution and/or disclosing to the SUBSCRIBER of VMI Property, including but not limited to the Program, Format or any VMI Website to the SUBSCRIBER. 
  1. The SUBSCRIBER shall consider the Program (including the source code and associated code listings) and VMI Property, including all related technical and business information, whether disclosed in oral, visual or written form, to be confidential and proprietary to VMI.  The SUBSCRIBER shall exercise at least a reasonable standard of care to protect the confidentiality of the information, and to prevent the unauthorized use, dissemination, disclosure or publication of confidential information during the Term of Access.  The SUBSCRIBER may disclose such confidential and proprietary information to those of its employees, sub-contractors or consultants, who have a definable need to know and who are under similar obligations of confidentiality and use as provided herein.  The term of confidentiality shall extend for two (2) years beyond the expiration and/or termination date of this Agreement except for any information which is designated as a trade secret, which shall remain confidential until one or more of the subsequent events occur; however, it is understood that this Agreement shall impose no obligations of confidentiality on the SUBSCRIBER where the Program or VMI Property: (a) was rightfully in the SUBSCRIBER’s possession before receipt from VMI; (b) is or becomes a matter of public knowledge through no fault of the SUBSCRIBER; (c) is rightfully received by the SUBSCRIBER from a third party without a duty of confidentiality; (d) is disclosed by VMI to a third party without a duty of confidentiality on the third party; (e) is disclosed under operation of law; provided that SUBSCRIBER timely notifies VMI and VMI is given the opportunity to protest such disclosure; or (f) is disclosed with VMI’s prior written approval.  The SUBSCRIBER acknowledges that VMI deems the terms and conditions recited in this Agreement, but not the parties to or the existence of this Agreement, to be confidential.   
  1. PAYMENT AND PRICING SCHEDULE.  VMI will provide Access to the SUBSCRIBER for the Term of Access consistent with the selected Subscription Tier based on the currently published pricing terms and conditions recited in Attachment A that is in effect as of the Effective Date of this Agreement.  The SUBSCRIBER shall promptly pay VMI the amounts specified in Attachment A as follows: i) the Initial Access Fee amount is due and payable on the Effective Date; and ii) the Annual Renewal Fee amount is due and payable thirty (30) days prior to each anniversary date of the Effective Date if this Agreement is still in effect and SUBSCRIBER desires to renew this Agreement as provided herein. Once payments of the Fees have been made, the amounts paid are not refundable for any reason, except as may otherwise be provided in Attachment A or herein.  Failure to pay in full any amount due and owing shall result in denial, cessation and suspension of Access until such amount is paid in full. Any outstanding amount that is past due shall be subject to a 1.5% monthly interest rate (or the allowable rate permitted by law) applicable to the total amount that is past due and owing.  Further, VMI may elect to terminate this Agreement under Section 11 if the SUBSCRIBER does not remedy the payment deficiency as provided under Section 11. However, if there is no Agreement termination, then once the applicable Fee, and the applicable interest, is paid in full, then VMI shall re-instate Access.  The pricing terms and conditions in Attachment A are subject to change, at any time and at VMI’s discretion, and VMI will make the SUBSCRIBER aware of any such changes with at least thirty (30) days’ notice prior to the next renewal anniversary date as communicated by posting on a related VMI web site, email, fax or PDF to the SUBSCRIBER by VMI; and the changes therein shall become effective on the anniversary date of the Effective Date for the upcoming renewal.  The SUBSCRIBER may elect to terminate the Agreement if the SUBSCRIBER does not desire to accept changes in the pricing terms and conditions for the next renewal period; and as a result, the SUBSCRIBER may elect to terminate this Agreement as provided under Section 11.   
  1. PROGRAM AVAILABILITY/DATA PROCESSING.  Access for the SUBSCRIBER for the Term of Access will be made available under the terms and conditions recited herein. However, the SUBSCRIBER acknowledges that VMI, thirty (30) days prior to any renewal anniversary date, may discontinue without any liability, at its discretion and without cause, SUBSCRIBER Access.  Further, at any time during the Term of Access but with thirty (30) days’ notice to the SUBSCRIBER, VMI can make any changes to the Program, Format, Online- Editor or Access, which VMI deems necessary to continue to provide Access for the Term of Access.  Any new versions, releases, updates, enhancements, bug fixes, error corrections, patches, changes, alterations, or improvements to the Program will be made available, upon thirty (30) days’ notice, to the SUBSCRIBER, at the sole discretion of VMI, which the SUBSCRIBER must accept in order to maintain Access and to receive technical support as recited in Section 9.  The foregoing shall be implemented on the anniversary of the Effective Date, except in the case of mandatory maintenance changes, which may be implemented at any time during the Term of Access. VMI will maintain Access for the current Term of Access but may terminate the Agreement if the SUBSCRIBER refuses to allow implementation of the foregoing at the renewal date. Further, VMI may offer additional functionality, capability or applications, which prices for accessibility and use thereof, will be recited in a new Schedule A to be attached hereto, and which shall be effective on the date specified therein.  Any of the foregoing once made available shall be subject to the terms of this Agreement.  The SUBSCRIBER acknowledges that events over which VMI has no control, such as but not limited to hosting availability, server availability, power outages, or system maintenance shut downs, whether scheduled or unscheduled, or system failures, may result in VMI immediately ceasing Access.  In such event, where Access is terminated by events reasonably out of control by VMI as provided in connection with the foregoing or under Section 12(g), VMI shall have no further liability or obligations, and this Agreement will terminate as provided under Section 11 subject to the obligations recited therein. However, if VMI intentionally, actively and directly ceases Access for a SUBSCRIBER through no SUBSCIBER fault, VMI shall refund a pro-rata portion of the Fees paid by SUBSCRIBER based on the remaining period in the Term of Access. Termination may occur as provided under Section 11. 
  1. MARKETING PRACTICES/AUDIT VERIFICATION.  The SUBSCRIBER shall: a) avoid deceptive, misleading, or unethical practices that may be detrimental to VMI or the Program or VMI Property; b) not make any representations, warranties or guarantees to any third party or entity on behalf of VMI, concerning the Program, and its operation, usefulness or performance; c) assume all costs, expenses, liabilities and responsibilities for the information and data, including SUBSCRIBER Data, input to the Format; d) assume all costs, expenses, liabilities and responsibilities in connection with any use, analysis, reliance, accuracy or guarantee of the Report; and e) comply with all applicable federal, state and local country laws, Internet laws and regulations and international treaties and pacts with respect to the subject matter of this Agreement.  Further, VMI shall be permitted with ten (10) business days’ written notice to audit, at VMI’s expense, and conduct during regular business hours a self-audit review and verification of the veracity and functionality of the Program and Format in the SUBSCRIBER’s environment, and to engage in testing procedures and processes to verify the Program functionality and operation.  Such audit will be subject to Section 5 confidentiality obligations.   
  1. TECHNICAL SUPPORT.  Unless otherwise mutually agreed by the parties, VMI, at its discretion, will supply the SUBSCRIBER with training, maintenance and support.  The SUBSCRIBER will promptly provide VMI with a copy of all questions or problems reported; and VMI will answer or fix, at its discretion and on as an available basis, such reported problems, except as provided under Section 10.  The SUBSCRIBER acknowledges that VMI shall only support the most current version of the Program and Format during the Term of Access, including any renewals.  In the event that technical support services are requested by the SUBSCRIBER, then the parties will, upon mutual consent, negotiate a separate support and maintenance agreement.   
  1. INDEMNITY/WARRANTIES/DISCLAIMERS/LIMITATION OF LIABILITY
  1. The SUBSCRIBER shall indemnify and hold VMI harmless from and against all claims, costs, liabilities, damages, and judgments (including reasonable attorney’s fees and court costs) that VMI may suffer or incur arising out of third party (including SUBSCRIBER patient guardians) claims due to the: (i) SUBSCRIBER’s use and/or reliance, in any manner, on the Report in connection with any business or canine health care monitoring, treatment or follow-up activity; (ii) SUBSCRIBER’s non-compliance with the conditions under Section 8; (iii) SUBSCRIBER’s unauthorized use, copying, modification, alteration of or unauthorized combination of materials, items, software or components with the Program or Format or VMI Property; (iv) SUBSCRIBER’s infringement, misuse or unauthorized use of VMI Property; (v)  SUBSCRIBER’s business arrangements with any third party in connection with this Agreement or the Program, Format or Report; (vi) SUBSCRIBER Data, which SUBSCRIBER edits, inputs and modifies; (vii) SUBSCRIBER’s access and use of the Program in connection with other than the canine harness provided by VMI, which canine harness cannot be altered, modified or changed, in any way, or incorrectly used or applied to the canine or worn by the canine; or (viii) SUBSCRIBER Data manipulation or processing that generates inaccurate, erroneous, corrupted or missing SUBSCRIBER Data, whether or not included in a Report. 
  1. VMI warrants that the Program will be free from operational errors and problems, except where any errors or problems are introduced directly or indirectly by the SUBSCRIBER.  VMI shall use reasonable efforts to remedy or fix problems or errors, at its expense, if errors or problems, which are caused directly by VMI, are discovered during the Term of Access and VMI is timely advised of any problems or errors in connection with the Program, Format or Online-Editor.  VMI shall not be obligated to cure any problem or error in connection with the Program, Format or Online – Editor, unless the SUBSCRIBER notifies VMI of the existence and nature of such problem or error promptly upon discovery. The foregoing shall be the sole and exclusive remedy available to the SUBSCRIBER with respect to the Program, Format and Online-Editor.  
  1. The SUBSCRIBER assumes full responsibility and liability for the accuracy and reliability of any SUBSCRIBER Data in connection with the Program or Format and/or is manipulated with the Online-Editor. 
  1. VMI shall not be responsible for or liable for any data loss, corruption or erasure of SUBSCRIBER Data or any third-party data accessed or used by the Program or populating the Format and VMI shall not be responsible for any data or information that is obtained directly from any other sources.  The SUBSCRIBER acknowledges that VMI is not responsible for any errors or omissions in such data or information. 
  1. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, THE UPLOAD, ACCESS, DOWNLOAD AND/OR USE OF THE PROGRAM, AND FORMAT, AND ASSOCIATED VMI PROPERTY, ARE “AS IS,” AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, USABILITY OR RELIABILITY OF ANY REPORT GENERATED FOR ANY PURPOSES, OR NON-INFRINGEMENT.  THE SUBSCRIBER ASSUMES ALL LIABILITIES, RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY RELIANCE ON THE PROGRAM, FORMATS, OR REPORTS OR SUBSCRIBER DATA; AND ACKNOWLEDGES THAT THE PROGRAM, FORMATS, AND REPORTS, AND CONTENTS THEREOF, ARE ONLY FOR REFERENCE PURPOSES AND ARE SIMPLY A SINGLE TOOL TO BE USED IN AN ANALYSIS OF ANY PREDICTABILITY IN CONNECTION WITH VETERINARY  CANINE TREATMENT, MONITORING AND ANALYSIS; AND ARE NOT TO BE RELIED UPON, SOLELY, WITH RESPECT TO ANY BUSINESS DECISIONS OR TREATMENT ACTIONS OR ACTIVITY.  ANY SUBSCRIBER DATA INPUT IS THE SOLE RESPONSIBILITY OF THE SUBSCRIBER, AND THE SUBSCRIBER ASSUMES THE ENTIRE LIABILITY FOR THE ACCURACY AND RELIABILITY OF ANY SUBSCRIBER DATA OR REPORT GENERATED THEREFROM, AND VMI MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE FOREGOING.  VMI SHALL NOT WARRANT THAT THE ACCESS AND/OR USE OF THE PROGRAM WILL BE UNINTERRUPTED OR REMAIN AVAILABLE THROUGHOUT THE TERM OF ACCESS.  VMI MAKES NO WARRANTIES AS TO ANY GOVERNMENT PROVIDED DATA OR INFORMATION. FURTHER, VMI SHALL HAVE NO OBLIGATION OR LIABILITY IN CONNECTION WITH THE STORAGE OR RETRIEVAL OF ANY SUBSCRIBER DATA OR THE INTEGRITY OF THE DATA SO STORED OR RETRIEVED.  ADDITIONALLY, VMI EMPLOYEES, CONSULTANTS, REPRESENTATIVES OR CONTRIBUTORS SHALL NOT BE AUTHORIZED TO GIVE ADVICE, INTERPRETATION, EXPLANATION OR ANALYSIS OF ANY REPORT GENERATED NOR MAY THE SUBSCRIBER RELY OR USE SUCH ADVICE IF SO GIVEN FOR ANY PURPOSE.   
  1. VMI’S ENTIRE LIABILITY FOR ANY CLAIM FOR ANY KIND OF LOSS OR DAMAGE ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT, OR ANY BREACH HEREOF, OR FROM THE ACCESS, PROGRAM, FORMAT OR VMI PROPERTY OR REPORT SHALL BE LIMITED TO ACTUAL AND PROVABLE DAMAGES UP TO THE AMOUNTS OF MONEY PAID HEREUNDER WHEREIN THE ACTUAL DAMAGES AWARDED SHALL BE PRO-RATED COMMENSURATE WITH THE UNUSED PORTION OF THE REMAINING TERM OF ACCESS, AND IN NO EVENT, SHALL VMI’S ENTIRE LIABILITY EXCEED ANY AMOUNTS PAID HEREUNDER BY THE SUBSCRIBER TO VMI PRO-RATED AS PROVIDED HEREIN FOR THE LAST TWELVE (12) MONTHS OF ACCESS AND USE FROM THE EVENT THAT PROMPTED ANY CLAIM, AND NO OTHER DAMAGES ARE AVAILABLE.  EXCEPT WHERE OTHERWISE RECITED AND WITH RESPECT TO VMI PROPERTY, IN NO EVENT, WHETHER AS A RESULT OF BREACH OF THIS AGREEMENT, BREACH OF WARRANTY OR ANY ACT OF NEGLIGENCE OR THE POSSESSION, USE, ACCESS OR OPERATION OF THE PROGRAM, FORMAT, REPORT OR THE SUBJECT MATTER HEREIN OR ANY OTHER CLAIMS MADE IN CONNECTION WITH THIS AGREEMENT, SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES ASSOCIATED WITH OR ARISING FROM LOSS OF PROFIT OR REVENUES.  SOME STATES DO NOT ALLOW SUCH LIMITATION, AND IN THAT EVENT THIS SECTION SHALL BE MODIFIED TO COMPORT WITH THAT PARTICULAR STATE’S REGULATORY STATUTE. THE ABOVE REMEDIES ARE THE ENTIRE REMEDIES AVAILABLE FOR THE BREACH OF ANY WARRANTY PROVIDED HEREIN OR THIS AGREEMENT. 
  1. TERMINATION

a)The SUBSCRIBER may, at any time and without cause, terminate this Agreement with thirty (30) days written notice.  

b)If the SUBSCRIBER breaches the Agreement by failing to pay in-full to VMI any moneys due and owing hereunder; or if either party materially defaults in the performance of its obligations hereunder, or otherwise breaches this Agreement, the breaching party shall correct such breach within thirty (30) days after written notice from the non-breaching party.  If any such breach is not remedied within such thirty (30)-day period, then the non-breaching party, at its option, may terminate this Agreement by giving final written notice to the other party.   

c)Upon any termination of this Agreement, the following shall occur:  i) all rights granted to the SUBSCRIBER hereunder, shall immediately terminate; ii) the SUBSCRIBER shall immediately, at the option of VMI, delete, with written confirmation, or return, any VMI Property in the SUBSCRIBER’s possession or control to VMI; and (iii) the SUBSCRIBER’s Access will immediately cease.  The SUBSCRIBER acknowledges that any monies paid hereunder are not refundable for any type of termination hereunder, except as otherwise recited herein. 

  1. OTHER
  1. The parties hereto are independent contractors with respect to each other.  Each party is not and shall not be deemed to be an employee, agent, partner or legal representative of the other for any purpose and shall not have any right, power or authority to create any obligation or responsibility on behalf of the other.   
  1. This Agreement, and Attachment A and any other attachments added from time to time throughout the Term, constitute the entire and complete agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written understandings or agreements, including but not limited to the SUBSCRIBER purchase order terms and conditions, concerning the subject matter hereof.    
  1. All amendments or modifications of this Agreement shall be binding upon the parties so long as the same shall be in writing and executed by each of the parties hereto.   
  1. No waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective, except pursuant to a written instrument signed by the party waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing. The provisions of this Agreement are severable; and if any provision shall be deemed invalid or unenforceable, the applicability or validity of any other provision of this Agreement shall not be affected, and this Agreement shall be construed as if such invalid or unenforceable provisions are not contained in this Agreement 
  1. The SUBSCRIBER shall comply with U.S. Export Control laws and regulations, and Internet laws and regulations. 
  1. The SUBSCRIBER shall not, without the prior written consent of VMI, assign or delegate this Agreement, or any rights or duties hereunder, directly, indirectly, by operation of law, or otherwise to any third party.  In the event of any permitted assignment hereunder, the assignee shall accept, without modification, in its entirety all the terms and obligations recited herein. 
  1. Neither party shall be deemed to have breached this Agreement by reason of delay or failure in performance or force majeure resulting from causes beyond the control, and without the fault or negligence, of the party.  Such causes include, but may not be limited to, an act of God, an act of war, riot, epidemic, fire, flood or other disaster; or as a result of suppliers’ unavailability, where no equivalent, alternate suppliers are available; or hosting or server unavailability, where no equivalent alternate host or server are available; or any other failure of data communication, transmission or reception functions, which is beyond the reasonable control of a party.  This Agreement shall remain in effect unless such delay or failure persists for one hundred twenty (120) consecutive days and there is no foreseeable remedy or cure available in which case this Agreement shall terminate as provided under Section 11.   
  1. The following sections, as appropriate, shall survive termination of this Agreement:  Sections 5, 8, 10, 11 and 12. 
  1. In the event of a dispute, prior to any formal action being taken, the parties shall try and resolve this dispute at the executive level within thirty (30) days following receipt of written notice that a dispute exists.  If such dispute is not resolved within such thirty (30) days, then the parties may resort to formal action in the form of Arbitration as provided below in Section 12(j). 
  1. This Agreement shall be governed by the laws of the State of Colorado applicable to contracts entered into and to be performed entirely within the State of Colorado, without regard to the principles of conflicts of law, and if a claim or controversy arises, such claim or controversy shall be submitted to binding arbitration in Denver, Colorado in accordance with the subsequent understanding.  VMI shall be entitled to seek all available legal and equitable remedies available.  With regard to any claims hereunder for damages, the prevailing party shall also be entitled to reasonable attorney’s fees and arbitration costs.  All limitations of liability as recited herein shall apply to any award.  Notwithstanding the provisions of this section 12(j) regarding arbitration, VMI or the SUBSCRIBER may proceed to any court of competent jurisdiction to obtain immediate injunctive relief with regard to protecting any intellectual property or confidential and proprietary information or enforce the arbitrator’s decision. 
  1. For all claims submitted to binding arbitration, the parties agree to have the claim(s) submitted before three arbitrators and conducted pursuant to the Rules of Commercial Arbitration of the American Arbitration Association (“AAA”).  Each party shall pick one arbitrator from the panel list supplied by the AAA, and the third arbitrator shall be chosen by the two appointed by the parties.  The parties agree that the award of the Arbitrators shall be the sole and exclusive remedy between them regarding any claims, counterclaims, issues or accountings presented or pled to the Arbitrators.  The decision of the Arbitrators shall be final, binding and incontestable and may be used as a basis for judgment, thereon in the State of Colorado, or elsewhere as the situation dictates.  Pending the submission to arbitration and thereafter, until the Arbitrators publish their decision, the parties shall, except in the event of termination, continue to perform all their obligations under this Agreement without prejudice to a final adjustment in accordance with the arbitrator’s award. 
  1. All requirements for notices hereunder must be in writing; and forwarded to the above address either via a reputable national overnight courier or registered certified mail, return receipt requested.  The parties further acknowledge that facsimile signatures or signatures in PDF format are fully binding and constitute a legal method of making any modifications hereto.   

Effective Date: June 10, 2019 

ATTACHMENT A 

Payment and Pricing Schedule 

1.  General 

  • The initial Access Fee is for Access to the then current version of the Program as of the effective Activation Date of the Agreement.  New versions and releases of the Program, or substantial feature enhancements may be subject to additional cost.  The SUBSCRIBER has the option to add the new version or feature enhancement at additional cost, or remain with the current version of the Program at the pricing displayed below    
  • For each renewal of this Agreement, VMI reserves the right to increase any prices, upon thirty (30) days advance written notice as published on VMI’s web site. 
  • Term of Access begins on the Activation Date and continues commensurate with the term associated with the payment made. 

2. Non-Refundable Payments Due (Amounts Are Published on the VMI Web Site.): 

  • The Initial Access Fee (the “set up fee”) is due and payable by the SUBSCRIBER on the Effective Date of the Agreement. 
  • Annual Renewal Fee is due and payable in full thirty (30) days prior to the annual Effective Date. Failure to pay the Annual Renewal Fee will result in cessation of Access, which is deemed to be canceled on the last day of the paid Term of Access. 

3.  SUBSCRIBER Program Pricing Notes:  

The SUBSCRIBER shall pay a one- time, initial fee to register each harness user in the VMI system (the “set-up fee”).  The initial set-up fee as of the Effective Date is $120.00, which initial fee is subject to change, at VMI’s discretion, as posted on VMI’s web site. (NOTE: Harness Prices are Recited on the VMI Website and may be ordered by SUBSCRIBER under VMI’s standard Purchase Order terms, which are located on the VMI website.) 

The SUBSCRIBER shall pay annual fees to maintain registration for each harness user (the “annual fee”). The annual fee as of the Effective Date is posted on VMI’s web site, and shall be due and payable either as provided herein or as elected on the VMI web site. The annual fee shall be due and payable on each anniversary of the Effective Date to maintain the registration. The annual fee is subject to change, at VMI’s discretion, as posted on VMI’s web site. 

This Attachment A is made a part of and governed by the terms and conditions of the Agreement between the VMI and SUBSCRIBER. The SUBSCRIBER acknowledges that the prices and pricing structure recited hereunder are subject to change as provided in the Agreement and as posted on the VMI web site. This Attachment A can be substituted at any time during the Term and is effective as of the above recited Effective Date for this Attachment A, and any changes to Attachment A pricing or pricing structure (such as a Subscription Tier) shall be posted on the VMI web site, which changes shall be posted on an annual basis at the start of each calendar year, and if SUBSCRIBER does not desire to pay the annual fee for the next subscription year, then SUBSCRIBER can elect to terminate this Agreement without further liability thirty (30) days prior to any payments that are due and payable to VMI by SUBSCRIBER.