BY DOWNLOADING AND/OR USING ANY SOFTWARE AND/OR APPLICATIONS (COLLECTIVELY, “SOFTWARE”) PROVIDED TO YOU BY OR ON BEHALF OF PET HOSPITAL SOLUTIONS, LLC (“FETCHIT”) IN CONNECTION WITH YOUR USE OF THE FETCHIT SERVICE, YOU ACKNOWLEDGE AND AGREE THAT (1) YOU HAVE READ THIS END USER LICENSE AGREEMENT (“LICENSE AGREEMENT”); (2) YOU UNDERSTAND IT; (3) YOU ARE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT; AND (4) YOU MAY RECEIVE, WITHOUT FURTHER NOTICE OR PROMPTING, UPDATED VERSIONS OF THE SOFTWARE. IF YOU DO NOT AGREE TO THE FOREGOING, YOU AGREE THAT YOU DO NOT HAVE A LICENSE TO, AND YOU WILL NOT USE, THE SOFTWARE.
This License Agreement contains details on your limited right and license to use the Software solely in connection with your use of the Fetchit service. This License Agreement is between you and Fetchit and not any other party.
The Software contains material that is protected by copyright and other applicable intellectual property laws in the U.S. and other territories and by international treaty provisions. The Software is licensed, not sold or given, to you by Fetchit for use only under the terms of this License Agreement and all rights not specifically granted to you herein are reserved to Fetchit and to any third party with ownership rights in software and documentation used in the Software. You may not remove any proprietary notice of Fetchit or any other party from any copy of the Software or documentation.
The rights granted under the terms of this License Agreement include any software upgrades that replace and/or supplement the original Software.
Fetchit reserves the right, from time to time, with or without notice to you, to change the terms of this License Agreement in our sole and absolute discretion. The most current version of this License Agreement will supersede all previous versions. Your use of the Software after changes are made means that you agree to be bound by such changes. As such, you should review the License Agreement periodically.
(a) Independent Contractors: Fetchit and Customer are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship; (b) Assignment: Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other; (c) Merger or Acquisition: Notwithstanding subsection (b) above, Fetchit may assign this Agreement without Customer’s prior written consent in the case of a merger, acquisition or other change of control, and in such event this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; (d) Governing Law: This Agreement shall be governed by the laws of the State of Tennessee applicable to contracts entered into and wholly to be performed therein; (e) Forum Selection: Any and all disputes arising out of or related to this Agreement or performance hereof, shall be brought in the Federal or state courts located in Shelby County, Tennessee and the parties hereby agree to the exclusive jurisdiction thereof for such purposes and waive any objection thereto; (f) Jury Trial Waiver: Customer and Fetchit each waive any right to a jury trial in connection with any and all disputes arising out of or related to this Agreement; (g) Attorney’s Fees: In the event of any dispute arising out of or related to this Agreement, the reasonable attorney’s fees of the prevailing party in any such dispute shall be paid by the other party; (h) Effect of Waivers: The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision; (i) Survival: All terms of this Agreement which by their nature extend beyond the termination of this Agreement, remain in effect until fulfilled and apply to respective successors and assigns; (j) Integration; Amendment: This Agreement constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter hereof and cannot be amended except by a writing signed by authorized representatives of both parties; and (k) No Reliance: No party hereto has relied on any statement, representation or promise of any party or representative thereof except as expressly set forth in this Agreement.
License to Use Software. Fetchit hereby grants Customer a limited, revocable (as set forth in this Agreement), non‐transferable, non‐exclusive, license to use the Software. All rights not expressly granted to Customer are reserved by Fetchit. Customer shall not: (a) sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software or any part thereof in any way; or (b) modify or make derivative works based upon the Software or reverse engineer, decompile or disassemble the Software. The parties expressly agree that Fetchit does not hereby take legal title to any Content supplied by Customer. You may engage a contractor to assist you with your implementation or use of the Software so long as: i) the contractor uses the Software according to this Agreement; ii) the contractor acts solely for your benefit when it uses or implements the Software, and iii) You have a written agreement in place that protects Fetchit’s intellectual property and proprietary rights. You will be responsible for the acts or omissions of the contractor as it relates to their use or implementation of the Software.
Restrictions on Use. Customer covenants that it will not (i) use the Software in any illegal or unlawful manner or for any illegal or unlawful purpose or (ii) perform any act which interferes with or disrupts the Software. Fetchit may, but is not obligated to, review or screen Content transmitted through the Software for compliance with this Agreement or applicable law, provided, however, that in addition to any other rights Fetchit may have, Fetchit reserves the right to suspend Customer’s access to and/or use of the Software to the extent that Fetchit determines, in its sole discretion, that such suspension is necessary to comply with applicable law or to prevent significant harm to any end user or the Software.
The Software/Software Updates
The Software. The “Software” is a locally hosted software application that enables Customer to integrate its existing business management software or practice management software with its existing phone system in order to provide automated retrieval of client data and information. As used herein, “Content” means all content, data or information in any form that is uploaded or accessed through the Software by Customer or on Customer’s behalf. The Software does not include Customer’s Content. By using the Software, Customer may make choices about the presentation, management and distribution of the Content. Customer may change Customer’s selections as permitted by the Software.
Customer shall be solely responsible for protecting information stored on Customer’s own servers and computer systems. The Software requires only “read only” access to Customer’s Content and Fetchit will not attempt to remove Customer’s Content from Customer’s servers and/or system.
Use of the Software requires one or more compatible devices, Internet access (fees may apply) and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Software involves hardware, software, and Internet access, your ability to use such Software may be affected by the performance of these factors. High speed Internet access is recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility and not the responsibility of Fetchit.
To assist Customer in utilizing the Software, if necessitated by Customer’s system capabilities, Fetchit will provide to Customer a phone interface system (“the Phone Interface System”) that collects inbound call information from Customer’s existing phone service that is designed to work with the Software and Customer’s business management systems (CRMs), or practice management systems to automate certain aspects of its customer contact activities. The Phone Interface System shall at all times remain the property of Fetchit.
All costs for existing phone usage are the responsibility of Customer. Fetchit does not assume any liability for calls placed or received, and does not guarantee any level of service. In its sole discretion, Fetchit may assist Customer in coordinating with IT professionals and Internet Service Providers (ISP) to help facilitate the efficient use of the Software. However, Fetchit is not providing IT or related services to Customer. Customer agrees to follow Fetchit’s system requirements and database syncing.
Upgrading the Software. Fetchit may issue you an upgraded version of the Software upon an instance of your use of the Software. Alternatively, Fetchit may require you to consent to an upgrade to the Software (“Software Upgrades”) before using, installing or accessing the Software. If you decline the Software Upgrades, you may not be able to use or access the Software or the Fetchit service.
Export Law Assurances
You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was legally obtained or authorized by Fetchit. In particular, but without limitation, the Software may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list
U.S. Government End Users
The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
This License Agreement is effective until terminated. Your rights under this License Agreement are terminable by Fetchit at any time without notice. Further, this License Agreement will terminate if Fetchit finds that you have violated any of the terms of this License Agreement. No waiver of any breach of any provision of this License Agreement by Fetchit shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless it is made in writing and is signed by an authorized representative of Fetchit. All provisions relating to confidentiality, proprietary rights, and nondisclosure shall survive the termination of this License Agreement.
Your ability to use the Fetchit service is subject to your system compatibility with our Software as such requirements may change from time to time. Compatibility of system requirements with the Software is your responsibility.
Upon the termination of this License Agreement, you shall cease all use of the Software and Fetchit service and destroy all copies, full or partial, of the Software that you may have downloaded hereunder. Upon termination of this License Agreement (or at any other if requested by Fetchit), you shall promptly return the Phone Interface System to Fetchit at your expense. If you do not return the Phone Interface System to Fetchit within seven (7) days of termination of this License Agreement (or request by Fetchit), you shall be liable to Fetchit for the full price of the Phone Interface System.
Representation and Warranties
Each party agrees not to disclose the other party’s Confidential Information without its prior written consent. “Confidential Information” includes, without limitation: (i) all intellectual property; (ii) financial information (including pricing) and business information; (iii) Customer’s patient and customer information and records; and (iv) any other information designated in writing as “Confidential.” Confidential Information does not include (A) Content; (B) information that has become publicly known through no breach by Customer or Fetchit of these confidentiality obligations; (C) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; or (D) information required to be disclosed by law.
Fetchit shall have the right to identify Customer as a customer and Customer shall have the right to identify Fetchit as the provider of the Software.
Each party agrees to indemnify, defend and hold harmless the other party and such other party’s officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all third party claims, damages, liabilities, loss, government fines, costs and expenses (including reasonable attorney’s fees and litigation expenses) (each a “Claim”), arising out of or related to any alleged or actual breach of any representation, warranty or covenant made by the indemnifying party in this Agreement. The indemnification obligations in this section are conditioned upon: (a) prompt written notice by the indemnified party to the indemnifying party of any claim, action or demand for which indemnification is claimed; (b) the opportunity to have reasonable control of the defense by the indemnifying party, with counsel reasonably acceptable to the indemnified party, and settlement thereof by the indemnifying party; and (c) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request, all provided, however, that failure to provide reasonable notice, control and/or cooperation shall not relieve the indemnification obligations hereof unless the party seeking to avoid such obligations can demonstrate material prejudice to the defense of a Claim caused thereby. Notwithstanding anything to the contrary contained herein, the indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such Claim against the indemnified party.
All notices under this Agreement must be in writing and delivered either by hand, e‐mail, certified mail (return receipt requested, postage pre‐paid) or nationally recognized overnight delivery service (all delivery charges pre‐paid) and addressed, if to Customer, to the contact information identified in Customer’s initial order and, if to Fetchit, to Pet Hospital Solutions, LLC, 18 S. Byhalia Rd., Collierville, TN 38017 or to such other address as Fetchit may identify from time to time.