HerdDogg Services Agreement

1.1. Hardware. The hardware (“Hardware”) is provided on

a rental basis and is not sold to Customer. HerdDogg

agrees to provide, and Customer agrees to rent the

Harware set out on the Order Form attached hereto or

otherwise executed by the Parties (“Order Form”), at the

price per unit on the Order Form (“Fees”). If additional

Hardware is needed at a future date, such Hardware will

be billed at HerdDogg’s then-current rate. Customer shall

be responsible for all Hardware maintenance and upkeep

during the Term. At the end of the Agreement term or

upon termination, Customer agrees to return the

Hardware to HerdDogg in the same condition as

received, normal wear and tear excepted.

1.2. Software. Subject to and conditioned on Customer’s

payment of all subscription fees (“Subscription Fees”)

and compliance with all other terms and conditions of this

Agreement, HerdDogg hereby grants Customer a nonexclusive,

non-transferable (except as expressly

permitted by this Agreement) right to access and use its

proprietary data collection and presentation system (the

“Software”) during the Term. Such use is limited to

Customer’s internal use by Customer’s employees,

consultants, contractors, or agents who are authorized to

access and use the Software (“Authorized Users”).

HerdDogg shall provide to Customer the necessary

passwords and network links or connections to allow

Authorized Users to access the Software. The Software’s

terms and conditions are subject to the Terms of Service

available online (https://www.herddogg.com/terms-of-service),

which are incorporated herein by reference and

may be modified from time to time, in which instance

such modified terms and conditions shall be

reincorporated as if fully set forth herein.

1.3. Support. Support for the Hardware and Software

(together, the “Services”), including upgrades and fixes

provided by HerdDogg, shall be performed in accordance

with the Support Policy found on HerdDogg’s website or

by emailing support@herddogg.com. HerdDogg may, in

its sole discretion, push updates and fixes to the Software.

Customer’s failure to properly install such updates or

fixes shall give rise to no liability on the part of

HerdDogg for failure of the Services to function properly.

2.1. General. Customer shall pay HerdDogg the Fees as set

out on the Order Form multiplied by the number of units

of Hardware the Customer wishes to purchase. Customer

shall pay the Subscription Fees as laid out on the Order

Form. Payments of the Subscription Fees will be made

on a monthly basis, and HerdDogg may require payment

of the Subscription by automated ACH transfer or require Customer to maintain a current form of payment on file

with Company for direct billing (the “Payment

Method”). By providing such Payment Method,

Customer authorizes Company to charge the Payment

Method for the Subscription Fees due hereunder in

accordance with the payment schedule, unless other

payments terms are made with the customer.

Any setup and implementation fees listed in the Order

Form shall be due upon the execution of the Order Form.

Access to the Software shall commence upon payment of

the Subscription Fees. HerdDogg may terminate

Customer’s access to the Services for any late payments.

Customer shall also pay the re-activation fees listed on

the Order Form at the time the Hardware is re-activated.

(a) Customer and HerdDogg agree that HerdDogg
owns all proprietary rights, including patent,
copyright, trade secret, trademark and other
proprietary rights, in and to the Hardware and the
Software (collectively, “Property”), including any
algorithms, corrections, bug fixes, enhancements,
updates, upgrades or other modifications,
including but not limited to customizations,
derivative works, processes and designs of, in
and/or to the Hardware, or Software, whether made
by HerdDogg or any third party, and all user
documentation whether or not any portion thereof
is or may be validly registered, copyrighted or
patented. Customer agrees to keep the Property
free and clear of all liens, claims and
encumbrances, and any act of Customer purporting
to create any lien, claim or encumbrance on or with
respect to the Property will be void and without
effect.
(b) Customer shall own all right, title and interest in
and to any data collected through the provision of
the Services and any documentation or other
materials Customer may upload to the Software
(the “Customer Data”).

Under no circumstance may Customer sell,

license, publish, distribute or otherwise transfer to a third

party the Property or any copy thereof (as applicable), in

whole or in part, without the prior written consent of

HerdDogg. Further, Customer shall not provide any

third-party access to the Property, without the prior

written consent of HerdDogg.

(a) Subject to Customer’s compliance with the terms

and conditions of this Agreement, including

Customer’s payment of the Subscription Fees,

HerdDogg hereby grants, and Customer accepts, a

non-transferable, revocable, limited license to use

the Software and Property. The Software shall be

deemed accepted upon installation. Customer may

not copy, distribute, sublicense, sell, share, or host

the Software. Further, Customer may not use the

Software for processing third-party data as a service

bureau, application service provider, or otherwise.

(b) Customer hereby agrees that HerdDogg and its

affiliates shall have a license to use, transmit,

reproduce, distribute, and modify Customer

Data for purposes related to Customer’s use of

the services.

(c) Notwithstanding anything to the contrary,

HerdDogg shall have the right to collect and analyze

data and other information relating to the provision,

use and performance of various aspects of the

Hardware and Software and related systems and

technologies (including, without limitation,

information concerning Customer Data and data

derived therefrom), and HerdDogg will be free

(during and after the term hereof) to (i) use such

information and data to improve and enhance the

Hardware and Software and for other development,

diagnostic and corrective purposes in connection

with the services provided hereunder and other

HerdDogg offerings, and (ii) disclose such data

solely in aggregate or other de-identified form in

connection with its business. Customer Data shall be

treated in accordance with HerdDogg's privacy

policy, as amended from time to time, which can be

viewed at https://www.herddogg.com/privacy.

(d) No rights or licenses are granted except as expressly

set forth herein.

Modifications, Reverse Engineering. Only HerdDogg

may alter, enhance, merge, make derivative works or

otherwise modify the Hardware, or Software or merge

either or both into any other computer application or

environment. Customer may not, and Customer’s thirdparty

agents may not, reverse engineer, disassemble,

decompile, translate, or make any attempt to discover the

component parts, connections, source code, object code

or methodology of the Hardware, Software, or Services

as a whole (as applicable).

Subject to the provisions of this Section 4,

HerdDogg makes certain limited

warranties regarding the Hardware (“Limited

Warranty”), which will either be: (i) included in a

written statement with the Hardware, or (ii) HerdDogg’s

standard limited warranty in force when the Hardware is

delivered to Customer, as set out in the written warranty

statement on HerdDogg’s website.

The Limited Warranty shall not

apply where the Hardware:

(a) has been subjected to abuse, misuse, neglect,

negligence, accident, improper testing, improper

installation, improper storage, improper handling,

abnormal physical stress, abnormal environmental

conditions, or use contrary to any instructions issued

by HerdDogg;

(b) has been reconstructed, repaired, or altered by

persons other than HerdDogg or its authorized

representative; or

(c) has been used with any third-party product,

hardware or product that has not been

previously approved in writing by HerdDogg.

During any warranty period, regarding any defective Hardware,

HerdDogg’s liability under the Limited Warranty is discharged, in

HerdDogg’s sole discretion and at its expense, by either

repairing or replacing the defective Hardware.

EXCEPT AS EXPRESSLY SET FORTH IN

THIS SECTION 4, ALL HARDWARE, SOFTWARE,

DOCUMENTATION, MATERIALS, DATA, INFORMATION,

AND SERVICES INCLUDED ON OR AVAILABLE

THROUGH THE SERVICES OR USED TO ACCESS,

EXPLORE OR OTHERWISE USE THE SERVICES

(COLLECTIVELY, THE “CONTENT”), ARE

PROVIDED “AS IS” AND “AS AVAILABLE.”

EXCEPT AS OTHERWISE WARRANTED HEREIN

(INCLUDING ANY ATTACHMENTS HERETO),

THE SERVICES AND THE CONTENT ARE

PROVIDED WITHOUT WARRANTIES OF ANY

KIND, EITHER EXPRESS OR IMPLIED,

INCLUDING, BUT NOT LIMITED TO, IMPLIED

WARRANTIES OF MERCHANTABILITY, FITNESS

FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

WITHOUT LIMITING THE

ABOVE, HERDDOGG, ITS SUBSIDIARIES, AND ITS

LICENSORS DO NOT WARRANT THAT: (1) THE

SYSTEM OR CONTENT WILL BE AVAILABLE AT

ANY PARTICULAR TIME OR LOCATION; OR (2)

ANY DEFECTS OR ERRORS WILL BE

CORRECTED. BECAUSE SOME JURISDICTIONS

DO NOT PERMIT THE EXCLUSION OF CERTAIN

WARRANTIES, THESE EXCLUSIONS MAY NOT

APPLY TO YOU.

THE HARDWARE AND SOFTWARE ARE NOT A

DIAGNOSTIC SYSTEM BUT RATHER MERELY A

DATA COLLECTION TOOL. UNDER NO

CIRCUMSTANCES SHOULD THE HARDWARE OR

SOFTWARE BE USED IN LIEU OF VETERINARY

CARE.

Unless otherwise agreed by the Parties in

writing, HerdDogg shall deliver the Hardware and any

associated documentation by commercial carrier or U.S.

postal service. As a physical shipment, delivery of

Hardware shall be FOB shipping point. Responsibility

for the Hardware shall pass to Customer once the

Hardware is delivered to HerdDogg’s commercial carrier

or the U.S. Postal Service. The Hardware shall be deemed

accepted upon delivery. Customer shall be responsible

for any damage to the Hardware once the risk of loss has

passed to Customer. In the event that Customer

experiences an event where the Hardware is either

completely damaged or destroyed so that it cannot be

used for its intended function (“Loss”), it shall notify

HerdDogg within seven (7) days of such Loss.

IN NO EVENT SHALL

EITHER PARTY BE LIABLE TO THE OTHER FOR

SPECIAL, INDIRECT, INCIDENTAL,

CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR

COVER DAMAGES (EVEN IF SUCH PARTY HAS

BEEN ADVISED OF THE POSSIBILITY OF SUCH

DAMAGES), ARISING FROM THE PERFORMANCE

OR NON-PERFORMANCE OF THE SERVICES

FURNISHED HEREUNDER, INCLUDING,

WITHOUT LIMITATION, DAMAGES RESULTING

FROM THE USE OR INABILITY TO USE THE

SERVICES (INCLUDING, WITHOUT LIMITATION,

ENGINEERING OR DESIGN CONCEPTS,

CALCULATIONS, RELATED DRAWINGS OR

SOFTWARE DESIGN, OR PROGRAMMING),

DELAY OF DELIVERY OR LOSS OR PROFITS,

DATA, BUSINESS OR GOODWILL.

NOTWITHSTANDING

ANYTHING TO THE CONTRARY, HERDDOGG’S

LIABILITY TO CUSTOMER FOR ANY AND ALL

CLAIMS, WHETHER IN AN ACTION IN

CONTRACT OR IN TORT, INCLUDING, BUT NOT

LIMITED TO, NEGLIGENCE OR STRICT

LIABILITY, FOR ANY LOSS OR INJURY ARISING

OUT OF, CONNECTED WITH OR RESULTING

FROM THE PERFORMANCE OR BREACH OF THIS

AGREEMENT OR THE USE, PERFORMANCE OR

NON-PERFORMANCE OF THE SYSTEM,

SERVICES, OR ANY OTHER DELIVERABLE OR

ANY PART THEREOF, SHALL NOT EXCEED THE

FEES PAID BY CUSTOMER TO HERDDOGG FOR

THE HARDWARE, SOFTWARE, AND/OR

SERVICES CAUSING THE LOSS OR INJURY FOR

THE TWELVE (12) MONTHS PRECEDING SUCH A

CLAIM.

Company shall indemnify, defend and hold

harmless Customer and Customer’s officers,

directors, employees, agents, successors and

permitted assigns (each, including Customer, a

“Customer Indemnitee”) from and against any and all

Losses incurred by the Customer Indemnitee arising out

of or relating to any action by a third party (other than an

affiliate of a Customer Indemnitee) to the extent that such

Losses arise from any allegation in such action that the

Services, or any use of the Services, in accordance with

this Agreement (including the documentation) infringes

any intellectual property right of any third party.

Customer shall indemnify,

defend and hold harmless HerdDogg and its affiliates,

and each of its and their respective officers, directors,

employees, agents, subcontractors, successors and

assigns (each, including HerdDogg, a “Company

Indemnitee”) from and against any and all Losses

incurred by the Company Indemnitee in connection with

any action by a third party (other than an affiliate of a

Company Indemnitee) to the extent that such Losses arise

out of or relate to any allegation:

(a) that any intellectual property right or other right of

any person, is or will be infringed, misappropriated

or otherwise violated by any: (i) use or combination

of the Services by or on behalf of Customer or any of

its representatives with any hardware, software,

system, network, service or other matter whatsoever

that is neither provided by HerdDogg nor authorized

by HerdDogg in this Agreement and the

documentation or otherwise in writing; and (ii)

information, materials or technology or other matter

whatsoever directly or indirectly provided by

Customer or directed by Customer to be installed,

combined, integrated or used with, as part of, or in

connection with the Services or documentation;

(b) of or relating to facts that, if true, would constitute a

breach by Customer of any representation, 

warranty, covenant or obligation under this

Agreement;

(c) of or relating to negligence, abuse, misapplication,

misuse or more culpable act or omission (including

recklessness or willful misconduct) by or on behalf

of Customer or any of its representatives with

respect to the Services or otherwise in connection

with this Agreement; or

(d) of or relating to use of the Services by or on behalf

of Customer or any of its representatives that is

outside the purpose, scope or manner of use

authorized by this Agreement or the documentation,

or in any manner contrary to HerdDogg’s

instructions.

THIS SECTION 6 SETS FORTH

CUSTOMER’S SOLE REMEDIES AND

HERDDOGG’S SOLE LIABILITY AND

OBLIGATION FOR ANY ACTUAL, THREATENED

OR ALLEGED CLAIMS THAT THIS AGREEMENT

OR ANY SUBJECT MATTER HEREOF (INCLUDING

THE SERVICES) INFRINGES, MISAPPROPRIATES

OR OTHERWISE VIOLATES ANY INTELLECTUAL

PROPERTY RIGHTS OF ANY THIRD PARTY

Each party (as “Receiving Party”) understands that the

other party (as “Disclosing Party”) has disclosed or may

disclose business, technical or financial information

relating to the Disclosing Party’s business (hereinafter

referred to as “Confidential Information” of the

Disclosing Party). Confidential Information of

HerdDogg includes non-public information regarding

features, functionality and performance of the Hardware

and Software, and the terms of this Agreement, including

the Subscription Fees and pricing. The Receiving Party

agrees: (i) to take reasonable precautions to protect such

Confidential Information, and (ii) not to use (except in

performance of the Services or as otherwise permitted

herein) or divulge to any third person any such

Confidential Information. The Disclosing Party agrees

that the foregoing shall not apply with respect to any

information after five (5) years following the disclosure

thereof or any information that the Receiving Party can

document (a) is or becomes generally available to the

public, or (b) was in its possession or known by it prior

to receipt from the Disclosing Party, or (c) was rightfully

disclosed to it without restriction by a third party, or (d)

was independently developed without use of any

Confidential Information of the Disclosing Party or (e) is

required to be disclosed by law.

For the

duration of the Term and for two (2) years thereafter, the 

Receiving Party agrees: (a) to maintain the Confidential

Information of the Disclosing Party in strict confidence;

(b) not to disclose such Confidential Information to any

third parties who are not subject to confidentiality

obligations at least as stringent as those contained herein;

and (c) to use such Confidential Information only as set

out in this Agreement and in accordance with

HerdDogg’s Privacy Policy

(https://www.herddogg.com/privacy). Receiving Party

will treat Confidential Information of Disclosing Party

with the same degree of care as it accords to its own

Confidential Information, but in no event with less than

reasonable care. Receiving Party may disclose the

Confidential Information of Disclosing Party to its

representatives, who have a bona fide need to know such

Confidential Information, provided that each such

representative is bound by a legal obligation as protective

as those set forth herein.

The obligations of Receiving Party under

Section 7.2 will not apply to any Confidential

Information that: (a) is now or thereafter becomes

generally known or available to the public, through no act

or omission on the part of Receiving Party (or any of its

representatives, affiliates, or agents) or any third party

subject to any use or disclosure restrictions with respect

to such Confidential Information; (b) was known by or

lawfully in the possession of Receiving Party, prior to

receiving such information from Disclosing Party,

without restriction as to use or disclosure; (c) is rightfully

acquired by Receiving Party from a third party who has

the right to disclose it and who provides it without

restriction as to use or disclosure; or (d) is independently

developed by Receiving Party without access, use or

reference to any Confidential Information of Disclosing

Party.

Notwithstanding anything to

the contrary, Receiving Party may disclose Confidential

Information provided by Discloser: (a) to its financial,

accounting and legal advisors with a need to know for the

purpose of providing services to Receiving Party; and (b)

as required to be disclosed pursuant to any judicial or

governmental request, requirement or order, provided

that Receiving Party takes reasonable steps to give

Discloser sufficient prior notice in order to contest or

limit such request, requirement or order.

Upon termination of the Agreement or support and

maintenance, Receiving Party will promptly return to

Disclosing Party or, at Disclosing Party’s option, destroy

all tangible items and embodiments containing or

consisting of Disclosing Party’s Confidential Information

and all copies thereof (other than backup or archival

copies) and upon request of Disclosing Party, provide

written certification of such destruction or return by an

authorized person.

In accordance with HerdDogg’s

Privacy Policy, HerdDogg may access and collect

information, service information, log data, and/or device

data (collectively, “Data”) in the course of performance

hereunder. Data collection will be performed via the

Hardware and the Software receiving, processing,

storing, displaying, and transmitting the Data. In

accordance with the terms of this Agreement, HerdDogg

retains all right, title, and interest in the Data. For the sake

of clarity, HerdDogg acknowledges and agrees it does not

acquire any ownership rights to Customer’s Personal

Information, as it’s defined in HerdDogg’s Privacy

Policy. HerdDogg hereby grants to Customer a nonexclusive,

transferable, perpetual license to access and

use processed and delivered information derived from the

Data.

The initial term of this Agreement begins on

the Effective Date and, unless terminated earlier pursuant

to this Agreement’s express provisions, will continue in

effect for one (1) year mandatory from such date (the

“Term”). At the end of the “Term”, the customer will

return all equipment to HerdDogg or renew the

Agreement for the “Term” of one (1) year.

(a) A Party who is not in default of this Agreement may,

by written notice to the other Party (“Defaulting

Party”), terminate this Agreement if the Defaulting

Party is in material breach of any term, condition or

provision of this Agreement, if such breach is not

cured within thirty (30) days after the Defaulting

Party receives written notice of such breach;

provided, however, that HerdDogg may terminate

this Agreement immediately upon nonpayment of

fees when due.

(b) Customer may terminate this Agreement upon thirty

(30) days’ notice to HerdDogg, provided that in the

event of such early termination Customer shall

immediately pay to HerdDogg an early termination

fee equal to six (6) times the fees invoiced in the

month preceding the termination date (the “Early

Termination Fee”).

Upon any termination of this

Agreement, any license to use the Services will

automatically terminate without further action on the part

of any Party. Thereafter, Customer shall immediately

discontinue any and all use of the Services, including any

documentation thereof, and return all Hardware to

HerdDogg. If this Agreement is terminated for any reason

other than HerdDogg’s breach of this Agreement,

Customer agrees to pay (i) any remaining Subscription

Fees that would have been payable through the end of the

Term and (ii) any amounts that may be payable pursuant

to Section 2.2.

Any termination will not discharge or otherwise affect

any pre-termination obligations of either Party existing

under this Agreement at the time of termination; and all

liabilities which have accrued prior to the date of

termination shall survive such termination.

Sections 2 (Payment Terms), 8.3 (Effect of

Termination), 5 (Liability), 3 (Intellectual Property), 9.3

(Governing Law), and this Section 8.4 (Survival) shall

survive termination of the Agreement.

If either party fails to fulfill its

obligations hereunder (other than an obligation for the

payment of money), when such failure is due to an act of

God, or other circumstances beyond its reasonable

control, including but not limited to fire, flood, civil

commotion, riot, war (declared and undeclared),

revolution, or embargoes, then said failure shall be

excused for the duration of such event and for such a time

thereafter as is reasonable to enable the parties to resume

performance under this Agreement, provided however,

that in no event shall such time extend for a period of

more than one hundred eighty (180) days.

No term of this Agreement will be deemed

waived, nor breach of this Agreement excused unless the

waiver or consent is in writing, signed by the Party

granting such waiver or consent.

This Agreement and the

rights and obligations of the Parties under this Agreement

shall be governed by and construed in accordance with

the laws of the State of Nebraska, without giving effect

to conflicts of law provisions of that State or any other

state. The application of the United Nations Convention

of Contracts for the International Sale of Goods is

expressly excluded. Any legal suit, action or proceeding

arising out of or related to this Agreement or the licenses

granted hereunder will be instituted exclusively in the

state or federal courts of the United States located in

Lancaster County, Nebraska, and each Party irrevocably

submits to the exclusive jurisdiction of such courts in any

such suit, action or proceeding. Service of process,

summons, notice or other document by mail to such

Party’s address set forth herein will be effective service

of process for any suit, action or other proceeding

brought in any such court.

Each Party irrevocably and

unconditionally waives any right it may have to a trial by

jury in respect of any legal action arising out of or relating

to this Agreement or the transactions contemplated

hereby.

All notices and demands required or permitted

to be given by either Party to the other hereunder shall be

in writing and shall be sent to the contact information set

out on the Order Form. Any notice to be given hereunder

by a Party hereto shall be deemed to have been given, (i)

when received if given in person, (ii) on the date of

acknowledgment of receipt if sent by email or overnight

mail or (iii) three (3) business days after being deposited

in the U.S. mail, certified or registered mail, postage

prepaid.

If any severable provision of this

Agreement is deemed invalid or unenforceable by any

judgment of a court of competent jurisdiction, the

remainder of this Agreement shall not be affected by such

judgment, and the Agreement shall be carried out as

nearly as possible according to its original terms and

intent.

Customer may not assign this Agreement to

any third party without the prior written consent of

HerdDogg. HerdDogg expressly reserves the right to

assign this Agreement to an acquirer of or successor to

substantially all of its business assets related to this

Agreement and/or to the Software; provided, however, no

assignment shall be binding and valid until and unless the

acquirer has assumed in writing all of the duties and

obligations of HerdDogg.

This Agreement is the entire

agreement between the Parties and supersedes any other

oral or written communications, advertisements or

understandings with respect to the subject matter

hereunder. This Agreement shall not be modified except

by a written instrument signed by both Parties.

This Agreement may be signed by

manual, electronic or facsimile signature in several

counterparts of like form, each of which when so

executed shall be deemed to be original, and such

counterparts together shall constitute one and same

instrument.