These Order Form Terms and Conditions (these “Terms”) govern the lease and license of the RepleniTrac Vault solution 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, facility list, hardware 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”).

BY SUBMITTING THE ORDER FORM AND/OR USING THE TECHNOLOGY, CUSTOMER ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF ITSELF AND ANY OF ITS AFFILIATES THAT USE THE TECHNOLOGY. IF CUSTOMER IS A COMPANY OR OTHER LEGAL ENTITY AND YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT SUBMIT THE ORDER FORM OR USE THE TECHNOLOGY.

MWI may modify these Terms from time to time by providing notice to Customer, including by email to the address Customer provided or by posting notice within the RepleniTrac Vault portal or user interface. Customer’s continued use of the Technology after such notice constitutes Customer’s agreement to the modified Terms.

Background

MWI licenses a pharmaceutical inventory management solution for veterinary practices known as the “RepleniTrac Vault,” which utilizes scanner and related technology to monitor the storage and movement of pharmaceuticals and other products (“Products”) used in veterinary clinics, hospitals, and similar facilities. Customer operates veterinary clinics and hospitals and desires to lease and license from MWI the RepleniTrac Vault, including all technology, software programs, hardware, enhancements, modifications, materials, and documentation relating thereto as more fully described in Exhibit A (the “RTV Technology” or “Technology”), subject to these Terms. In consideration of the mutual promises herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:

1. Lease & License of RTV Technology

(a) Subject to this Agreement, MWI leases and licenses to Customer the Technology described in Exhibit A and the Order Details during the Term (defined below). The license is non-exclusive, non-transferable, non-sublicensable, and a limited right for Customer and its Authorized Users (defined below) to access and use the Technology for the sole purposes of inventory management and storage. This lease and license continues during the Term and automatically terminates upon the expiration or termination of this Agreement. Customer will comply with written instructions from MWI regarding the return of the Technology upon expiration or termination of the Term.

(b) In consideration of Customer’s payment of the applicable Fees and compliance with this Agreement, MWI will make the Technology available for use by authorized users who are either employed by Customer or who provide contracted services to Customer (“Authorized Users”). The parties intend that the Technology only be accessed and used by Authorized Users at the facilities (“Facilities”) set forth in the Order Details and Exhibit A.

(c) Customer acknowledges that RepleniTrac Vault uses finger-scan technology that collects and retains an Authorized User’s biometric identifying information (e.g., fingerprint). Prior to an Authorized User operating and accessing the RTV Technology, Customer shall obtain the affirmative written consent of its Authorized Users to the collection and retention of their biometric identifying information.

(d) Customer shall cause its Authorized Users to maintain the security and confidentiality of any identifiers and PIN codes used to access RepleniTrac Vault. Authorized Users may not share their PIN code with others. Should an Authorized User leave Customer’s employ or no longer require access to the Technology, Customer remains responsible for promptly deactivating the former Authorized User’s PIN code or contacting MWI to deactivate such PIN code and account.

(e) Customer shall maintain accurate records of the names of each Authorized User. Such records and Customer’s use of the Technology may be inspected and verified by MWI at any time during Customer’s business hours upon reasonable notice.

(f) Customer shall use the Technology in accordance with this Agreement and shall be responsible for the use and operation of the Technology by Customer and its Authorized Users, including for the accuracy and completeness of Customer Data (defined in Section 3(b)). MWI does not serve as Customer’s recordkeeper, and Customer shall be responsible for retaining copies of all logs and reports provided through its use of the Technology.

(g) Customer acknowledges that MWI has designed the Technology to assist Customer in complying with its legal and regulatory requirements. Customer, not MWI, is responsible for how it uses the RTV Technology to comply with those requirements. The RTV Technology and related services do not include any legal or regulatory advice.

2. Installation and Service

(a) Initial Installation. MWI will install the RTV Technology at the Facility locations agreed to in writing (including via email) by the parties. Customer shall provide and maintain an installation environment (including all power, wiring, and cabling required for installation) as specified in the Technology documentation and any other written instruction provided by MWI. Customer will not make any alterations or attach any devices to RepleniTrac Vault hardware that are not provided by MWI, nor remove same from the place of original installation without MWI’s prior consent.

(b) Repairs and Maintenance. If the Technology becomes disabled for any reason, Customer will immediately advise MWI of the disability, specifying its nature and any known cause. Customer will not make any repairs or adjustments to the Technology without MWI’s prior written consent (email consent will suffice). If the Technology does not conform to specifications in this Agreement, MWI will arrange for its repair or replacement and pay associated costs, 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

(a) AllyDVM. To ensure the Technology has access to necessary data, Customer agrees to install and enable AllyDVM, Inc.’s or SecureDVM, LLC’s (collectively “AllyDVM”) application program interface (API) or data extractor and to grant access to its practice management system (PIMS). Customer and AllyDVM will negotiate separate terms (including any Provider Services Agreement or End User License Agreement) for the provision of the API or data extractor and related services (the “AllyDVM Terms”). Most features that require data will only work if AllyDVM is integrated with and able to access and write back the necessary data from/to Customer’s PIMS. If AllyDVM is unable to integrate with Customer’s PIMS or access Customer’s data as necessary, both parties will diligently work to fix the failure; if unresolved within 30 days, either party may terminate this Agreement on 15 days’ written notice, except that Customer may not terminate under this provision if it caused or requested AllyDVM to lose access to or integration with Customer’s PIMS or data.

(b) Data Ownership and License. During the Term, MWI will collect certain data tracked by the Technology and listed in Exhibit A (the “Data”). As between the parties, all Data provided by Customer or accessed/pulled from Customer’s PIMS (“Customer Data”) is owned exclusively by Customer; provided that Customer grants a non-exclusive, perpetual, irrevocable, transferable, sublicensable, royalty-free, worldwide license and right to extract, synchronize, store, use, process, reproduce, modify, perform, display, copy, distribute, provide, and license (i) Customer Data consisting of Personally Identifiable Information solely for purposes of providing, supporting, developing, or improving the Technology and other services requested or authorized by Customer, and (ii) any Customer Data not constituting Personally Identifiable Information under applicable law. All Data provided by MWI or generated by the Technology (“MWI Data”) is owned exclusively by MWI; provided that MWI grants Customer a non-exclusive, non-transferable license to access and use MWI Data made available through the Technology solely for purposes of using the Technology. During the Term, MWI will provide Customer with access to an online portal containing such Data and may provide ad hoc or routine reports as mutually agreed. The parties may gather feedback regarding the Technology as described in Exhibit A (the “Feedback Data”), owned jointly by the parties. “Personally Identifiable Information” means any information maintained about an identified or identifiable natural person, including names, addresses, email addresses, phone numbers, IP addresses, biometric identifying information, and other details that could be used to directly or indirectly identify an individual. MWI uses and discloses Personally Identifiable Information as described in this Agreement and in accordance with its privacy policy at www.mwiah.com/global-privacy-statement, as updated from time to time.

(c) Intellectual Property Rights. MWI has developed or has rights to the Technology and retains all right, title, and interest in it, including all intellectual property rights and rights to enhancements and upgrades developed during the Term. Title will not pass to Customer by virtue of this Agreement. 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 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 installation location(s) identified in the Order Details and Exhibit A. The RTV Technology and the terms of this Agreement are the Confidential Information of MWI and may not be used, disclosed, or made available to any third party except as expressly permitted. All rights and licenses not expressly granted to Customer are reserved to MWI.

4. Fees

(a) Fee. In consideration for the lease and license to the Technology and Data and any services performed 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 on 30 days’ written notice given within 30 days of the effective date of the increase.

(b) 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 other services. MWI may pass through to Customer any integration, data access, or connection fees that AllyDVM must pay to Customer’s PIMS provider to integrate, connect, access, or transfer Customer’s data. MWI may request reimbursement at the same time it submits invoices for Fees.

(c) Payment Terms. MWI will invoice Customer monthly beginning (i) upon completion of installation (as detailed in Exhibit A) or (ii) 45 days after the Effective Date, whichever occurs first. Customer will pay any undisputed amounts within thirty (30) days of the invoice date and will notify MWI in writing of any disputed amounts within thirty (30) days of the invoice date, after which 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, 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.

5. 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.

6. Term and Termination

(a) Term. This Agreement begins on the Effective Date and continues for twelve (12) months (as renewed or extended, the “Term”). Thereafter, it automatically renews for successive twelve (12) month terms unless either party elects not to renew by providing written notice at least thirty (30) days prior to the end of the then-current Term.

(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 Cause. Either party may terminate for cause upon thirty (30) days’ written notice of a material default, stating the reason, and the defaulting party’s failure to cure within the thirty (30) day period. MWI may also terminate this Agreement and the license (i) if Customer fails to pay any amount due and the failure continues for fifteen (15) days after written notice, or (ii) if providing the Technology and related services causes or will cause MWI to violate any laws, rules, or regulations, including those relating to controlled substances applicable to MWI.

(d) Termination for Specific Events. Either 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 against it 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 thirty (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. Unless otherwise provided, the rights and obligations in Sections 3(b) and 4 through 11 survive termination or expiration of this Agreement.

7. Indemnification

(a) By Customer. Customer will defend, indemnify, and hold harmless MWI and its affiliates, directors, officers, employees, and representatives from any third-party claims, demands, costs, expenses (including reasonable attorneys’ fees), and liabilities or losses (“Claims”) to the extent they result from or arise out of the negligence or willful misconduct of Customer or its 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 third-party Claims to the extent they result from or arise out of the negligence or willful misconduct of MWI in connection with the Technology or its breach of this Agreement.

(c) Indemnification Procedures. The party claiming indemnification (“Indemnified Party”) will give prompt written notice to the indemnifying party (“Indemnifying Party”) of any Claim, stating its nature, basis, and amount to the extent known; a delay or failure to notify will not relieve the Indemnifying Party of liability except to the extent it is materially prejudiced. The Indemnifying Party will defend or settle the Claim; the Indemnified Party will reasonably cooperate at the Indemnifying Party’s expense, may participate in the defense at its own expense, and will not settle or admit liability without the Indemnifying Party’s written consent. The Indemnifying Party 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 Party without the Indemnified Party’s written consent. Each party will act in good faith to minimize the scope of any Claim.

8. Compliance with Law; Liability; Force Majeure

(a) Applicable Law. Each party will comply with all applicable laws and regulations. Customer will not provide MWI with, and MWI will not accept, any “protected health information” as defined by HIPAA under this Agreement or otherwise.

(b) Controlled Substance & Prescription Product Compliance. Customer shall comply with all applicable state and federal laws, including state regulatory authorities and all DEA and FDA regulations relating to the security, storage, reporting, recordkeeping, and dispensing of controlled substances and prescription products. Customer represents, warrants, and covenants that it has and will maintain all licenses, certificates, and authorizations, including pharmacy licenses, DEA registrations, and applicable state controlled-substance licenses, required to purchase, handle, possess, or dispense any of the Products, and that its purchasing, handling, possession, and dispensing of the Products will strictly comply with all applicable laws, regulations, rules, and ordinances.

(c) Data Protection Law. Customer represents and warrants that any Personally Identifiable Information it transfers to MWI was collected in accordance with applicable privacy laws and that Customer has authority to provide it under applicable privacy laws. MWI’s access to Personally Identifiable Information is based on job role and responsibility. MWI may employ other companies and individuals to perform functions on its behalf and will use reasonable efforts to ensure its employees, agents, and contractors who access Personally Identifiable Information protect it consistent with this Agreement.

(d) Professional Responsibility. Neither MWI nor its parents, subsidiaries, affiliates, or suppliers shall have any liability for any decision made or action taken by Customer or any third party in reliance upon the Technology or any other information, product, or service provided under this Agreement.

(e) 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 IS PROVIDED ON AN “AS-IS,” “AS-AVAILABLE” BASIS, AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

(f) Limitation of Liability. EXCEPT FOR EACH PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 5 AND INDEMNIFICATION UNDER SECTION 7, (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, AND (ii) EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID TO IT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. EXCEPT FOR LOSSES OR DAMAGES RESULTING FROM MWI’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, MWI IS NOT RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING FROM THE OPERATION, CONDITION, POSSESSION, OR USE OF THE TECHNOLOGY.

(g) Force Majeure. If the performance of any part of this Agreement by a 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, lack of PIMS integration, electronic disruptions, internet, telecommunication, or electrical system failures or interruptions, acts of God, or any other cause beyond the party’s reasonable control (financial inability excepted), that party will not be responsible for the delay or failure of performance for such length of time.

9. 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 to the receiving party at the address it has provided in the Order Details or its signature block, or to such other address as the party has indicated by written notice.

10. 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, it will be curtailed only to the extent necessary to conform to law and permit enforcement to its full extent.

(c) Entire Agreement; No Reliance. This Agreement and the AllyDVM Terms, including referenced attachments, constitute the entire agreement and supersede all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, with respect to the subject matter. This Agreement 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.

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

(e) Assignment. This Agreement may not be assigned by either party without the prior written consent of the other, which will not be unreasonably withheld, and any attempted assignment will be without effect.

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

(g) Applicable Law; Venue. This Agreement will be construed and enforced in accordance with the laws of the State of Delaware (excluding its choice-of-law provisions). Each party irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in Delaware for any dispute hereunder and waives any objection to personal jurisdiction or to venue as improper or inconvenient.

(h) Independent Contractor. The parties’ relationship is that of independent contractors, and neither party is the agent, partner, employee, member of the workforce of, or participant in a joint venture with the other. Neither party has authority to bind the other unless otherwise agreed in writing.

(i) 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.

(j) Joint Preparation. Each party has had the opportunity to review this Agreement and to be represented by counsel of its own choice. This Agreement is executed voluntarily and will not be construed against a party solely because it drafted all or a portion of it.

(k) Electronic Execution; Counterparts. This Agreement may be executed and delivered electronically, including through electronic signature capture, and in one or more 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 RTV Technology

Purpose. The Technology and related services are provided during the Term to assist Customer with the inventory management of certain Products.

Technology. “Technology” means touchscreen kiosk computers, barcode scanners, drug safes, fingerprint scanners, accessory hardware, back-end data analytics, and the Database Server as described and listed on the MWI estimate or order form accepted by Customer.

Physical Location(s) of Technology. Customer will identify in writing to MWI the Facilities where the Technology will be located and the specific placement of the Technology within those locations (captured in the Order Details).

Description of Solution. MWI will provide touchscreen kiosks with 2D barcode scanners, drug safes, fingerprint scanners, accessory hardware, and access to the Database Server to allow Customer to monitor the storage and movement of certain Products at the Facilities. Customer must authorize and enable AllyDVM to integrate with Customer’s PIMS. The Technology will utilize a combination of user-input data through barcode scan, data entry, or data extraction via the AllyDVM integration in its proprietary software to update the RTV Technology. Customer acknowledges that ongoing monitoring, adjusting, and cycle counting of inventory is required for the RTV Technology to accurately provide data insights and recommendations. DEA-controlled substances and high-value pharmaceuticals will be stored in drug safes in compliance with federal laws and regulations. Technology will be returned to MWI upon expiration or termination of the Agreement pursuant to written directions from MWI. The Products will be tracked while in storage at a Facility.

Data. The parties will collect empirical and/or other Data for purposes of providing inventory management software to Customer, including:

• Product dispense data to update product on-hand counts in the PIMS;
• PO/Receipt data to update the PIMS to automatically interpret cost data to ensure margin preservation;
• Pet information including name, species, weight, age, gender, and owner name (and address information for DEA logs); and
• Schedule of patient visits/encounters/appointments, updated whenever changes occur.

The parties may also collect Feedback Data regarding the Facilities’ experiences with the Technology and services, gathered through surveys, questionnaires, and other agreed formats, to improve the Technology and related services.

Services. MWI will provide set-up and maintenance of the Technology at Facilities identified by Customer, provide Customer with access to the Data contained in the Database Server through an online portal, and may provide ad hoc or routine reports based on the Data as mutually agreed.

Schedule of Fees

The following summarizes the initial Fees as of the Effective Date. Hardware Fees are billed by clinic location on a monthly basis. Setup Fees and Additional Fees are billed by clinic location as they occur. Final quantities and per-site amounts are reflected in the Order Details submitted with this form.

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.