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TERMS OF SERVICE
This Pet Biz Experts Software Service Agreement (this “Agreement”) is made and entered into as of the date you signed up (the “Effective Date”) by and between [Company Name] (the “Client”) , a [State of Incorporation] [Entity], having a principal place of business at [Company Address], and Pet Biz Experts (the “Contractor”), a California LLC, having a principal place of business at 2371 Helen Road, Fallbrook, CA 92028.
In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Client and the Contractor (hereinafter, collectively, the “Parties”, or each, individually, a “Party”) agree as follows:
1. Services.
1.1 Statements of Work.
The Contractor shall provide the services and deliverables (hereinafter, the “Services”) set forth in one or more statements of work signed by both Parties and specifically referencing this Agreement (each, a “Statement of Work”). The initial accepted Statement of Work is attached hereto as Exhibit A. Additional Statements of Work substantially in the same form as the Statement of Work attached hereto shall be deemed incorporated into and governed by the terms of this Agreement.
If additional Statements of Work are executed, then the Client shall pay the Contractor for all Services performed prior to the additional Statement of Work before the Contractor begins work on the new Statement of Work.
1.2 Acceptance Testing.
All Services shall be subject to inspection and test by the Client at all times. The Contractor must follow testing standards and must pass quality assurance standards provided by the Client. The Client will have the right but no obligation to conduct acceptance testing on all such Services.
2. Compensation and Expenses.
2.1 Fees.
In consideration for the Services to be performed and the rights granted to the Client hereunder, the Client shall pay the fees set out in each Statement of Work (the “Fees”). Unless otherwise stated, the Fees do not include, and the Client shall be responsible for, any local, state, federal or foreign taxes (but not taxes based on income or assets of the Contractor), levies, duties, or similar governmental assessments of any nature including, without limitation, sales, use, value-added or withholding taxes arising from this Agreement.
2.2 Expenses.
Except as expressly set forth in the applicable Statement of Work, the Client shall reimburse the Contractor for all reasonable expenses incurred in connection with the performance of the Services.
2.3 Payment Terms.
Except as expressly set forth in the applicable Statement of Work, the Contractor shall invoice the Client in a timely manner for all Fees and expenses due hereunder. The Client will pay the full amount of each invoice within fifteen (15) days following receipt thereof, but in no event more than thirty (30) days after completion of the Services performed pursuant to the applicable Statement of Work.
Except as expressly set forth in the applicable Statement of Work, all late payments shall bear interest at the lesser of the rate of one and a half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. The Client shall also reimburse the Contractor for all reasonable costs incurred in collecting any late payments including, without limitation, attorneys’ and collection agency fees. In addition to all other remedies available under this Agreement or at law (which the Contractor does not waive by the exercise of any rights hereunder), the Contractor shall be entitled to suspend the provision of any Services if the Client fails to pay any amount when due hereunder and such failure continues for ten (10) days following written notice thereof.
3. Obligations of the Contractor.
3.1 Estimates Only.
The Contractor shall use reasonable efforts to meet any deadlines specified in this Agreement or any Statement of Work. Any such deadlines shall be estimates only.
3.2 Compliance with Laws.
The Contractor agrees to comply with all federal, state, county, and local laws, ordinances, and regulations applicable to the performance of the Services under this Agreement and any Statement of Work.
4. Obligations of the Client.
The Client shall cooperate with the Contractor in its performance of the Services and shall promptly respond to any requests from the Contractor for information, instructions, feedback, or approvals required by the Contractor. If required by the Contractor, the Client shall also provide access to the Client's systems, employees, contractors, and premises to enable the Contractor to provide the Services.
5. Relationship of the Parties.
The Contractor’s relationship with the Client is that of an independent contractor, and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment, or similar relationship. The details of the method and manner for performance of the Services by the Contractor shall be under the Contractor’s own control, the Client being interested only in the results thereof. The Contractor shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. The Contractor is not authorized to make any representation, contract, or commitment on behalf of the Client unless specifically requested or authorized in writing to do so by the Client.
Unless provided otherwise under this Agreement, the Contractor will not be entitled to any of the benefits that the Client may make available to its employees including, but not limited to, group health or life insurance, profit-sharing, or retirement benefits. The Contractor is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state, or local tax authority with respect to the performance of the Services and receipt of compensation under this Agreement. No part of the Contractor’s compensation will be subject to withholding by the Client for the payment of any social security, federal, state, or any other employee payroll taxes. To the extent required by applicable law, the Client will file a Form 1099 with the IRS, reporting all amounts that it pays to the Contractor under this Agreement.
6. Intellectual Property Rights.
A. The Client is and will be the sole and exclusive owner of all right, title, and interest to all the results and proceeds of the Services performed under this Agreement, and all other ideas, proposals, inventions, products, designs, documentation, processes, techniques, algorithms, materials, and all other work product of any kind whatsoever, that the Contractor may create, prepare, produce, author, derive, edit, modify, conceive, or reduce to practice, alone or jointly with others, in connection with performing the Services, or that result from the Services (collectively, the “Work Product”).
B. The Contractor hereby irrevocably transfers and assigns to the Client, and agrees to irrevocably transfer and assign to the Client, all right, title, and interest in and to the Work Product, including all worldwide patent rights (including patent applications and disclosures), copyrights, mask work rights, trademarks (together with the goodwill symbolized thereby), trade secret rights and other confidential or proprietary information, and other intellectual property rights (collectively “Intellectual Property Rights”) therein. The Contractor and the Client agree that, to the fullest extent permitted by applicable law, the Work Product is hereby deemed “work made for hire” as defined in Title 17 of the United States Code and all copyrights therein automatically and immediately vest in the Client. If, for any reason, any Work Product does not constitute “work made for hire,” the Contractor hereby irrevocably transfers and assigns to the Client, the Contractor’s entire right, title, and interest in and to such Work Product, including all Intellectual Property Rights therein, including the right to sue for past, present, and future infringement, misappropriation, or dilution thereof.
C. At the Client's reasonable request and sole expense, during and after the Term, the Contractor shall assist and cooperate with the Client and shall take such further actions, including the execution and delivery of appropriate documents, to enable the Client to acquire, transfer, maintain, perfect, and enforce its rights in any Work Product and all Intellectual Property Rights therein. In the event the Client is unable, after reasonable effort, to obtain the Contractor’s signature on any such documents, the Contractor hereby irrevocably designates and appoints the Client as its agent and attorney-in-fact, to act for and on the Contractor’s behalf solely to execute and file any such application or other document and do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights, or other intellectual property protection related to the Work Product with the same legal force and effect as if the Contractor had executed them. The Contractor agrees that this power of attorney is coupled with an interest and is irrevocable.
d. To the extent that any of the Contractor’s pre-existing materials are incorporated in or combined with any Work Product or otherwise necessary for the use or exploitation of any Work Product, the Contractor hereby grants or will cause to be granted to the Client a non-exclusive, royalty-free, irrevocable, perpetual, fully paid-up, worldwide license to fully use, publish, reproduce, perform, display, distribute copies of, prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise exploit such pre-existing materials and derivative works thereof. The Client may assign, transfer, and sublicense (through multiple tiers) such rights to others without the Contractor’s approval. All other rights in and to any pre-existing materials of the Contractor are expressly reserved by the Contractor.
7. Confidentiality.
7.1 Definition of Confidential Information.
From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) non-public, proprietary, and confidential information of the Disclosing Party including, without limitation, any information, materials or knowledge regarding the Disclosing Party and its business, financial condition, products, programming, techniques, customers, suppliers, technology, research, and development, in each case whether disclosed orally or disclosed or accessed in written, electronicr, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Agreement; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source that was not legally or contractually restricted from disclosing such information; (c) was in the Receiving Party’s possession prior to the Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by the Receiving Party without using any Confidential Information.
7.2 Non-Disclosure and Non-Use Obligations.
The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s affiliates and its or their employees, officers, directors, partners, members, managers, agents, service providers, attorneys, accountants, and financial advisors, who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency; provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. The Receiving Party shall promptly provide written notice of any such order to the Disclosing Party to permit the Disclosing Party to contest the order or seek confidentiality protections.
Notwithstanding anything to the contrary herein, the Contractor and its personnel shall be free to use and employ its and their general skills, know–how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know–how, methods, techniques, or skills gained or learned during the course of performing the Services, so long as it or they acquire and apply such information without disclosure of any Confidential Information of the Client and without any unauthorized use or disclosure of the Work Product.
7.3 Notice of Immunity Under the Defend Trade Secrets Act of 2016.
The federal Defend Trade Secrets Act of 2016 provides immunity in certain circumstances to employees, contractors, and consultants for limited disclosures of a Client's trade secrets. Specifically, employees, contractors, and consultants may disclose trade secrets: (i) in confidence, either directly or indirectly, to a federal, state, or local government official, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, employees, contractors, and consultants who file retaliation lawsuits for reporting a suspected violation of law may also: (A) disclose the trade secret to his/her attorney, and (B) use the information in a related court proceedings, as long as the individual files documents containing the trade secret under seal, and does not otherwise disclose the trade secret except pursuant to a court order.
8. Representations and Warranties.
8.1 Representations and Warranties By the Contractor.
The Contractor represents and warrants that it will perform the Services in a timely, professional, and workmanlike manner. If the Contractor’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client or its agents, subcontractors, consultants or employees, the Contractor shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by the Client, in each case to the extent arising directly or indirectly from such prevention or delay.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION, THE CONTRACTOR HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
8.2 Representations and Warranties By the Client.
The Client hereby represents and warrants to the Contractor that:
(a) the Client has full power and authority to enter into this Agreement and to perform all of its obligations in this Agreement;
(b) this Agreement has been duly and validly authorized, executed and delivered by the Client, constitutes a valid and binding obligation and agreement of the Client, and is enforceable against the Client in accordance with its terms;
(c) the Client is in compliance with and shall comply with all applicable laws, ordinances, rules, and regulations; and
(d) The Client is not in bankruptcy, receivership or conservatorship. The Client has the requisite financial resources and ability to meet its obligations under this Agreement.
9. Term and Termination.
9.1 Term.
This Agreement will commence on the Effective Date and will continue until a period of three months, unless earlier terminated in accordance with this Section (the “Term”).
9.2 Termination By the Client.
The Client may terminate this Agreement or any Statement of Work or both without cause upon thirty (30) calendar days written notice to the Contractor and receive a full refund of their subscription payment (minus their Setup payment (if signed up for monthly subscription, they pay a Setup fee, however, the Setup fee is waived in annual subscription). The Client may also terminate this Agreement or any Statement of Work or both, upon fifteen (15) calendar days written notice to the Contractor, if the Contractor materially breaches this Agreement or any Statement of Work and such breach is incapable of cure, or with respect to a material breach capable of cure, the Contractor does not cure such breach within ten (10) calendar days after receipt of written notice of such breach.
9.3 Termination By the Contractor.
The Contractor may terminate this Agreement or any Statement of Work or both at any time, with or without cause, with termination effective upon fifteen (15) calendar days upon the Contractor’s delivery to the Client of written notice of termination.
9.4 Effect of Expiration or Termination.
For the avoidance of doubt, the termination of any one particular Statement of Work will not terminate this Agreement. If the Contractor’s services are terminated prior to the completion of all Services described in any outstanding Statement of Work, the Contractor shall be entitled to payment for any Services already performed in accordance with this Agreement and the applicable Statement of Work through the date of the notice of termination, or such other amount as may be specified in the applicable Statement of Work.
Upon the expiration or termination of this Agreement for any reason, or at any other time upon the Client's written request, the Contractor shall within a reasonable time after such expiration, termination or request:
(a) deliver to the Client all deliverables (whether complete or incomplete) and all hardware, software, tools, equipment, or other materials provided for the Contractor’s use by the Client;
(b) deliver to the Client all tangible documents and materials (and any copies) containing, reflecting, incorporating, or based on the Confidential Information;
(c) permanently erase all of the Confidential Information from the Contractor’s computer systems; and
(d) provide reasonable cooperation and assistance to the Client upon the Client's written request and at the Client's expense, in transitioning the Services to an alternate service provider.
The rights and obligations of this clause and Section 5 (Relationship of the Parties), Section 6 (Intellectual Property Rights), Section 7 (Confidentiality), Section 8 (Representations and Warranties), Section 10 (Indemnification), Section 11 (Limitation of Liability), Section 12 (Disputes), Section 13 (Miscellaneous), and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. With respect to Confidential Information that constitutes a trade secret under applicable law, the rights and obligations set forth in Section 7 (Confidentiality) hereof will survive such termination or expiration of this Agreement until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Receiving Party or its affiliates and its or their employees, officers, directors, partners, members, managers, agents, independent contractors, service providers, attorneys, accountants, and financial advisors.
10. Indemnification.
The Client shall indemnify, defend, and hold harmless the Contractor and its affiliates and their respective officers, directors, employees, agents, affiliates, successors, and permitted assigns from and against any and all losses, claims, actions, suits, complaints, damages, liabilities, penalties, interest, judgments, settlements, deficiencies, disbursements, awards, fines, costs, fees, or expenses of whatever kind, including reasonable attorneys’ fees, relating to any claim of a third party arising out of or relating to the Client's gross negligence, willful misconduct, or material breach of this Agreement.
11. Limitations of Liability.
IN NO EVENT SHALL THE CONTRACTOR BE LIABLE TO THE CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL THE CONTRACTOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE CONTRACTOR PURSUANT TO THIS AGREEMENT THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12. Disputes.
12.1 Governing Law.
This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, without giving effect to any conflict of law principles.
12.2 Dispute Resolution and Jurisdiction.
Any dispute, claim, or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, shall be submitted to and decided by a single arbitrator by binding arbitration under the rules of the American Arbitration Association in the United States of America. The decision of the arbitrator shall be final and binding on the Parties and may be entered and enforced in any court of competent jurisdiction by either Party. The prevailing Party in the arbitration proceedings shall be awarded reasonable attorney fees, expert witness costs and expenses, and all other costs and expenses incurred directly or indirectly in connection with the proceedings, unless the arbitrator for good cause determines otherwise.
13. Miscellaneous.
13.1 Successors and Assigns.
Neither Party shall assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the other Party’s prior written consent; provided that either Party may assign or delegate any of its rights and obligations hereunder to any person or entity that acquires substantially all of such Party’s assets. Any purported assignment or delegation in violation of this Section shall be deemed null and void. No assignment or delegation shall relieve either Party of any of its obligations under this Agreement. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.2 Notices.
Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when actually delivered; (b) by nationally recognized overnight courier, upon written verification of receipt; (c) by email or facsimile transmission, upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth above or to such other addresses as either Party may provide in writing.
13.3 Entire Agreement.
This Agreement, together with all Statements of Work and any other documents referenced herein, constitutes the entire agreement of the Parties with respect to the subject matter contained herein. This Agreement supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter hereof. Where the terms of a Statement of Work conflict with the terms of this Agreement, which existed prior to such Statement of Work, the terms of this Agreement shall prevail, except to the extent that the Statement of Work expressly states that this Agreement is to be overridden or modified.
13.4 Waiver; Modification.
This Agreement may only be amended, modified, or supplemented by a written agreement signed by each Party hereto. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.5 Remedies.
All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise.
13.6 Severability.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13.7 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original copy of this Agreement, and all of which, taken together, shall be deemed to constitute one and the same agreement. Signatures hereto may be delivered electronically (including by facsimile transmission or email (including through a .pdf file)), and any such electronic copy or reproduction thereof shall be deemed an original.
13.8 Force Majeure.
The Contractor shall not be liable or responsible to the Client, nor be deemed to have defaulted or breached this Agreement or any Statement of Work, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Contractor including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), restraints or delays affecting carriers or the inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage (each, a “Force Majeure Event”). In the event of an occurrence of a Force Majeure Event, the Contractor shall give notice of suspension as soon as reasonably practicable to the Client stating the date and extent of such suspension and the cause thereof, and the Contractor shall resume the performance of such obligations as soon as reasonably practicable after the removal of such cause.
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