These Order Form Terms and Conditions (these “Terms”) govern the lease and license of the Equipment Health Solutions technology between the veterinary practice, veterinary industry participant, or service provider accepting these Terms in the manner indicated below (“Customer” or “you”) and MWI Veterinary Supply Co. (“MWI”), located at 3041 W. Pasadena Dr., Boise, ID. Together with the order details, Customer Locations, equipment configuration, and fees Customer submits through the applicable order form (the “Order Form” or “Order Details”), these Terms form a binding agreement (the “Agreement”) effective as of the date Customer submits the Order Form (the “Effective Date”).

Background

MWI has developed an equipment management and maintenance technology as further described in Exhibit A (the “Technology”). Customer operates veterinary clinics and/or hospitals and desires to lease and license the Technology from MWI, subject to these Terms. For good and valuable consideration, the receipt and sufficiency of which are acknowledged, and intending to be legally bound, the parties agree as follows:

1. Lease & License of Technology

Subject to this Agreement, during the Term, MWI leases the Technology to Customer and grants Customer a limited, non-exclusive, non-transferable, revocable license to utilize the Technology at the applicable Customer Locations. Within thirty (30) days of the Effective Date, MWI will arrange for the Technology to be delivered to the Customer Locations and installed. Upon termination of this Agreement, Customer will comply with written instructions from MWI regarding the return of the Technology. This lease and license continues for the Term and automatically terminates upon termination of this Agreement. Customer may only utilize the Technology at additional Customer Locations if: (i) approved in writing by MWI; and (ii) Customer remits the applicable fees for any such additional Customer Location(s) in accordance with this Agreement.

2. Installation and Service

(a) MWI will install, or arrange for the installation of, the Technology at the Customer Locations at locations agreed to in writing (including via email) by the parties. All references to Customer in this Agreement are deemed to include the Customer Locations, provided that, if a Customer Location is owned by a different legal entity than Customer, the legal entity that owns the Customer Location must execute an Addendum to this Agreement agreeing to be bound by the terms and conditions of this Agreement in the same capacity and to the same degree as Customer.

(b) If the Technology becomes disabled for any reason, Customer will immediately advise MWI of the disability, specifying its nature and any known cause. If the Technology does not conform to specifications in this Agreement, MWI will arrange for its repair or replacement. MWI will maintain the Technology and will pay any costs associated with repair or replacement, except to the extent that repair or replacement is due to Customer’s act or omission, including misapplication, abuse, misuse, or alteration of the Technology.

3. Data and Feedback

During the Term, MWI will collect certain transactional data tracked by the Technology related specifically to Customer’s use of the Technology (the “Data”). The Data will be owned exclusively by Customer; provided, however, that Customer grants a non-exclusive, non-transferable license to MWI to access and use the Data solely for use in connection with the Technology and providing other Products and services to Customer. In addition, the parties will collect data regarding Customer’s experience with the Technology (“Feedback Data”), which may be collected through meetings, telephone calls, surveys, questionnaires, and other formats as agreed. The Feedback Data will be owned solely by MWI but will be made available to Customer for its internal use or analysis upon request.

4. Intellectual Property Rights

MWI has developed or licensed the Technology and retains all right, title, and interest in it, including all intellectual property rights and rights to any enhancements and upgrades developed during the Term. Title to the Technology will not pass to Customer by virtue of this Agreement or its use. Customer will not cause or permit reverse engineering, disassembly, or de-compilation of the Technology, or attempt to discover its source code, and will not intentionally alter or impair any acknowledgment of copyright or other intellectual property rights of MWI. Customer will not (i) copy, distribute, assign, or resell the Technology; (ii) rent, lease, sub-lease, license, sub-license, transfer, or loan the Technology; (iii) modify the Technology in any respect; or (iv) move the Technology from the Customer Location(s) identified in the Order Details and Exhibit A.

5. Fees and Payment Terms

(a) Fee. In consideration for the license to the Technology and Data and any services performed or arranged by MWI, Customer will pay MWI the amounts listed in the Order Details and Exhibit A (the “Fees”). MWI reserves the right to increase the Fees once per calendar year; provided that if MWI increases the aggregate Fees by more than 5%, Customer may terminate this Agreement by providing MWI written notice of its intent to terminate within 30 days of the effective date of MWI’s notice of the price increase.

(b) Payment Terms. MWI will invoice Customer, and Customer will pay any undisputed amounts within thirty (30) days of the invoice date. Customer will notify MWI in writing of any disputed amounts within thirty (30) days of the invoice date, and the parties will negotiate in good faith to resolve the dispute promptly. A late fee of 1.5% per month (or any portion thereof) or the highest amount permitted by applicable law (whichever is greater) will be charged as of the due date on all amounts not paid within thirty (30) days of the invoice date, except amounts disputed in good faith.

(c) Reimbursable Expenses. Customer will pay directly or reimburse MWI for reasonable and necessary out-of-pocket expenses actually paid or incurred by MWI in connection with providing the Technology, Data, or any services. Customer acknowledges that MWI may pass through to Customer any additional travel costs associated with installation or additional services, if applicable. MWI may request reimbursement at the same time it submits invoices for Fees.

6. Confidential Information

(a) Definition. “Confidential Information” means any confidential or proprietary information disclosed by one party (“Disclosing Party”) to the other (“Recipient”), whether in writing, other tangible form, orally, or otherwise. It includes: (i) information about costs, procedures, rates, processes, systems, strategic plans, business plans, operating data, and financial information; and (ii) any analysis, compilation, study, or other material prepared by Recipient that contains or reflects any information disclosed by Disclosing Party. Customer Data is Customer’s Confidential Information and MWI Data is MWI’s Confidential Information. Confidential Information does not include information that:

1. at the time of disclosure to Recipient is generally available to the public;
2. after disclosure becomes generally available to the public other than as a result of a breach of this Agreement by Recipient;
3. Recipient can establish was already in its possession without restriction at the time it was received, if its source was not known to be bound by confidentiality;
4. Recipient receives from a third party without restriction, if its source was not known to be bound by confidentiality; or
5. >Recipient can establish was developed independently without use of any Confidential Information.

(b) Limitations on Disclosure and Use. Confidential Information must be kept strictly confidential and may not be disclosed or used except as permitted by this Agreement or as authorized in advance in writing by Disclosing Party. Recipient will limit access to employees, officers, directors, or other authorized representatives who need to know it in connection with this Agreement and who are obligated to maintain confidentiality under terms at least as stringent as those here. Recipient will inform such persons of the confidential nature of the information, take all reasonable steps to ensure they do not breach their obligations, and be responsible for any breach by such persons.

(c) Equitable Relief. Each party acknowledges that money damages would not be a sufficient remedy for breach and that Disclosing Party is entitled to seek specific performance and injunctive or other equitable relief, in addition to any other remedies at law or in equity, without the requirement of posting a bond.

(d) Disclosures Required by Law. If Recipient is required by law to disclose Confidential Information, it will give Disclosing Party prompt notice and use all reasonable means to obtain confidential treatment before disclosing. If it cannot assure confidential treatment after exhausting reasonable efforts, Recipient may disclose the information after receiving a written opinion of external legal counsel that disclosure is required by law.

(e) Effect of Termination. Upon written request, each party will return or destroy the other’s Confidential Information and certify accordingly. The obligation does not apply to Confidential Information stored on back-up media not readily accessible, and each party may retain a copy in its confidential legal files. Each party’s confidentiality obligations survive for five (5) years following expiration or termination of this Agreement.

7. Personal Information; Data Use

(a) Other than any Data that may qualify as Personal Information (defined below) and business contact information of Customer’s users of the software, the parties understand and agree that they do not intend to disclose Personal Information to each other under this Agreement. Notwithstanding the foregoing, if either party discloses Personal Information to the other under this Agreement, the Recipient agrees to comply with the provisions of this Section 7.

(b) For purposes of this Section: “Personal Information” means any information that identifies, or could be used to identify, a particular Person, including any Person’s name, address, telephone number, e-mail address, social security number, driver’s license, or other identifying information under then-existing applicable law; and “Person” means any natural individual.

8. Term and Termination

(a) Term. This Agreement begins on the Effective Date and continues for one (1) year (the “Term”). Thereafter, it automatically renews for additional successive one (1) year periods unless earlier terminated by either party in accordance with this Section 8.

(b) Termination Without Cause. Either party may terminate this Agreement without cause upon ninety (90) days’ prior written notice to the other party.

(c) Termination for Breach. Either party may terminate this Agreement for cause upon sixty (60) days’ written notice of a material default, stating the reason, and the defaulting party’s failure to cure the default within the sixty (60) day period.

(d) Termination for Specific Events. A party may immediately terminate this Agreement upon written notice upon the other party’s: (i) filing an application for or consenting to appointment of a trustee, receiver, or custodian of its assets; (ii) having an order for relief entered in Bankruptcy Code proceedings; (iii) making a general assignment for the benefit of creditors; (iv) having a trustee, receiver, or custodian appointed unless dismissed within 30 days; (v) insolvency within the meaning of UCC Section 1-201 or failing generally to pay its debts as they become due within the meaning of Bankruptcy Code Section 303(h)(1); or (vi) certifying in writing its inability to pay its debts as they become due (each, a “Bankruptcy Event”). Each party will provide immediate notice of a Bankruptcy Event.

(e) Effect of Termination. The rights and obligations of the parties contained in Sections 3 through 10 will survive termination or expiration of this Agreement.

9. Indemnification

(a) By Customer. Customer will defend, indemnify, and hold harmless MWI and its respective affiliates, directors, officers, employees, and representatives (“MWI Affiliates”) from any claims, demands, costs, expenses (including reasonable attorneys’ fees), and liabilities or losses (“Claims”) asserted against any MWI Affiliate by or on behalf of a third party to the extent the Claims result from or arise out of (i) the negligence or willful misconduct of Customer; (ii) MWI’s use of Customer Data; or (iii) Customer’s breach of this Agreement.

(b) By MWI. MWI will defend, indemnify, and hold harmless Customer and its affiliates, directors, officers, employees, and representatives from any Claims asserted against Customer by or on behalf of a third party to the extent the Claims result from or arise out of (i) MWI’s breach of this Agreement; or (ii) infringement of a third party’s intellectual property rights by the Technology.

(c) Procedures. The party claiming indemnification (“Indemnified Person”) will give prompt written notice to the indemnifying party (“Indemnifying Person”) of any Indemnified Claim, stating its nature, basis, and amount to the extent known, accompanied by copies of all relevant documentation. The Indemnifying Person will defend or settle the Indemnified Claim; the Indemnified Person will, at the Indemnifying Person’s sole cost and expense, cooperate in the defense, may participate in any defense at its own cost and expense, and will not settle or admit liability without the Indemnifying Person’s written consent. The Indemnifying Person will not settle or admit liability in a Claim it controls if doing so admits fault by, or imposes any liability or restriction on, the Indemnified Person without the Indemnified Person’s written consent. Each party will act in good faith to minimize the scope of any Indemnified Claim.

10. Compliance with Law; Liability; Force Majeure

(a) Legal Compliance. Each party will comply with all applicable laws and regulations.

(b) Limited Representation. MWI represents and warrants that it has all necessary legal rights and authority to lease and license the Technology to Customer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, THE TECHNOLOGY AND ALL DEVELOPMENTS ARE PROVIDED ON AN “AS-IS,” “AS-AVAILABLE” BASIS, AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE) AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

(c) Limitation of Liability. EXCEPT FOR EACH PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 6 AND SECTION 7, AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, (i) NO PARTY WILL BE LIABLE TO ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR OTHER SIMILAR DAMAGES ARISING OUT OF OR IN CONNECTION WITH A BREACH OF THIS AGREEMENT OR ANY SOW, AND (ii) THE TOTAL LIABILITY OF MWI UNDER THIS AGREEMENT OR ANY SOW WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER. EXCEPT FOR LOSSES OR DAMAGES RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, MWI AFFILIATES ARE NOT RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING FROM THE OPERATION, CONDITION, POSSESSION, OR USE OF THE TECHNOLOGY.

(d) Force Majeure. If the performance of any part of this Agreement by any party is affected for any length of time by fire or other casualty, government restrictions, war, terrorism, riots, strikes or labor disputes, lockout, transportation delays, electronic disruptions, internet, telecommunication, or electrical system failures or interruptions, acts of God, or any other cause beyond the party’s control (financial inability excepted), that party will not be responsible for the delay or failure of performance for such length of time.

11. Notices

Any notice, request, or other document to be given under this Agreement will be effective when received and must be given in writing and delivered in person or sent by overnight courier or registered or certified mail, return receipt requested, to MWI at MWI Veterinary Supply Co., 3041 W. Pasadena Dr., Boise, ID 83705, Attn: President and Assistant General Counsel, with a copy to MWI Specialty Healthcare, LLC, 5025 Plano Parkway, Carrollton, TX 75006, Attn: Legal Department; and to Customer at the address provided in the Order Details, or to such other address as a party has indicated by written notice.

12. Other Provisions

(a) Other Rights. No waiver of any breach of any condition or covenant will be deemed a waiver of a breach of the same condition or covenant in the future or a waiver of a breach of any other condition or covenant.

(b) Severability. If any provision or the scope of any provision is found unenforceable or too broad by judicial decree, the parties agree that it will be curtailed only to the extent necessary to conform to law and permit enforcement of this Agreement to its full extent.

(c) EMSAR. It is understood that MWI is engaging a third-party service provider, CSA Services Solutions, LLC d/b/a EMSAR, to provide certain services related to this Agreement. Subcontractors may be used by EMSAR to service equipment, with such subcontractors approved by MWI prior to servicing Customer equipment.

(d) Entire Agreement; No Reliance. This Agreement, including the attachments, addendums, or SOWs referred to herein, constitutes the entire agreement and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, with respect to the subject matter, and is not intended to confer any rights or remedies on, or impose obligations on, any person other than the parties. Other than the statements expressly set forth in this Agreement, neither party is relying on any statement of any person or entity with respect to its entry into this Agreement.

(e) Amendments and Modifications. This Agreement may be modified only by a written agreement signed by all parties.

(f) Assignment. This Agreement may not be assigned by any party without the prior written consent of the other party, which will not be unreasonably withheld, and any attempted assignment will be without effect; provided, however, that MWI may assign all or part of its obligations to any affiliate.

(g) Successors and Assigns. This Agreement will be binding on and benefit all successors, trustees, permitted assigns, and other successors in interest of the parties.

(h) Applicable Law. This Agreement will be construed and enforced in accordance with the laws of the State of Delaware (excluding its choice-of-law provisions).

(i) Independent Contractor. MWI’s relationship with Customer is that of independent contractor, and neither party is the agent, partner, employee, member of the workforce of, or participant in a joint venture with the other. No party has authority to bind the other unless otherwise agreed in writing.

(j) Publicity. No party will issue a press release, statement, or publication regarding the terms or existence of this Agreement without the prior written consent of the other party.

(k) Electronic Execution; Counterparts. This Agreement may be executed and delivered electronically, including through electronic signature capture, and in multiple counterparts, each of which is deemed an original and all of which together constitute one instrument. Electronic execution and delivery are legal, valid, and binding for all purposes.

Exhibit A

Description of Technology, Customer Locations & Fees

Purpose. The Technology and related services are provided during the Term to assist Customer with the management and maintenance of veterinary equipment at the Customer Locations.

Technology. “Technology” means the equipment management and maintenance technology, including associated software, hardware, accessory components, and back-end data analytics, as described and listed on the MWI estimate or order form accepted by Customer.

Customer Locations. Customer will identify in writing to MWI (through the Order Details) the Customer Locations where the Technology will be deployed. If a Customer Location is owned by a different legal entity than Customer, that entity must execute an Addendum agreeing to be bound by these Terms before the Technology is deployed at that location.

Services. MWI will arrange for delivery, installation, maintenance, repair, and replacement of the Technology at the Customer Locations as set forth in this Agreement. Equipment servicing may be performed by MWI’s third-party service provider, CSA Services Solutions, LLC d/b/a EMSAR, and its MWI-approved subcontractors.

Data. MWI will collect transactional Data tracked by the Technology related to Customer’s use of the Technology, together with Feedback Data regarding Customer’s experience, as described in Section 3.

Fees
The Fees applicable to this order — including any per-location subscription or service fees, installation charges, and reimbursable travel costs — are as set forth in the Order Details submitted with this form and in the MWI estimate or order form accepted by Customer. Fees are billed by Customer Location. MWI reserves the right to adjust the Fees in accordance with Section 5(a).

Acceptance of These Terms

How This Agreement Is Formed

Customer accepts these Terms by submitting the Order Form and/or by accessing or using the Technology. No physical signature is required. The person submitting the Order Form on behalf of Customer represents that they are authorized to bind the Customer entity to this Agreement. The Order Form submitted by Customer, together with these Terms and Exhibit A, constitutes the complete and binding Agreement between Customer and MWI as of the Effective Date.

This Agreement becomes effective upon Customer’s submission of the Order Form and MWI’s acceptance. MWI’s confirmation of the order or commencement of installation services shall constitute MWI’s acceptance.