IMPORTANT - PLEASE READ CAREFULLY

These Terms of Service govern access to and use of the Shepherd platform and services. This Agreement is entered into between Shepherd and the entity identified in the applicable Client Order Form or other ordering document.

By executing a Client Order Form that references these Terms, or by accessing or using the Services, Client agrees to be bound by these Terms.

Shepherd PIMS Terms of Service

THESE SHEPHERD PIMS TERMS OF SERVICE ("Terms") are entered into by and between Shepherd Veterinary Solutions, LLC ("Shepherd") and the customer identified in an applicable Client Order Form ("Client").

By executing a Client Order Form referencing these Terms, Client agrees to be bound by its terms.

1. Definitions.

As used herein:

  • (a)"Authorized Users" shall mean Client's employees and independent contractors working for Client in the ordinary course of Client's business who: (i) agree to be bound by the terms of these Terms; and (ii) are specifically authorized by Client to access the Service and identified on an applicable Client Order Form.
  • (b)"Display Devices" shall mean the display device of an Authorized User used to access, display, and use the Service.
  • (c)"PIMS" shall mean Shepherd's practice information management system for veterinary practices subscribed to by Client.
  • (d)"Optional Services" shall mean any and all selected optional services selected by Client on an applicable Client Order Form.
  • (e)"Services" shall mean the PIMS and Optional Services.
  • (f)"Service Start Date" shall mean the date from which Client first receives access to the PIMS or as identified on an applicable Client Order Form, whichever is earlier, subject to Section 5(b).
  • (g)"Fees" shall mean the fees payable pursuant to Section 3 hereof and an applicable Client Order Form.
  • (h)"Office" shall mean the address(es) of Client's office(s) in which an Authorized User's Display Device is located, as identified on an applicable Client Order Form.
  • (i)"Client Order Form" shall mean a written document executed by the Parties that describes the Services, Term, Fees, the number of Authorized Users and/or Display Devices, the permitted Office(s), and any other applicable terms and conditions applicable to Client's access and use of the Service.
  • (j)"Client Data" means any electronic data, information, content, or material that Client or its Authorized Users provide, upload, input, submit, transmit, or store in the Services in connection with Client's use of the Services. Client Data does not include aggregated or de-identified data created by or for Shepherd in accordance with Section 9(c).
  • (k)"Client Marks" shall mean the trademarks, service marks, copyrights, intellectual property, symbols, logos, emblems, decals, designs, colors, likenesses, or other visual representations of Client, as such trademarks and other marks may be modified by Client from time to time.
  • (l)"Term" shall be defined as in the Client Order Form executed by the Client.

2. License to Receive the Services.

  • (a)Grant. Shepherd hereby grants the Client a limited, non-exclusive and non-transferable license, without right of sublicense, during the Term to access, display, and use on Client's Display Devices within the United States, the Services, and to permit Authorized Users to access and use the Services, subject to the terms and conditions of these Terms. All rights in the Services not expressly granted hereunder are reserved to Shepherd.
  • (b)Scope. The license granted to Client hereunder is solely for Client's internal business purposes and is limited to the access, display, and use of the Services by only an Authorized User. Each Authorized User may access, display, and use the Services on only one Display Device at a time. Client shall have no right pursuant to these Terms to access, use, display, or distribute the Services, in whole or in part, beyond the number of Authorized Users identified on the applicable Client Order Form. Client may add additional Authorized Users by either executing a new Client Order Form or amending an existing Client Order Form. Client is responsible for all activities that occur under Client's and any Authorized User's accounts. Client will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all use of the Services by Client and any Authorized User; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Shepherd promptly after becoming aware of any such unauthorized access or use; and (c) comply with all applicable local, state, federal, and foreign laws in using the Services. Nothing in these Terms shall obligate Shepherd to continue providing access to any Services beyond the date when Shepherd ceases providing such Services to subscribers generally.
  • (c)Restrictions on Use. Client shall not edit, alter, abridge, or otherwise change in any manner the content of the Services, including, without limitation, all copyright and proprietary rights notices. Client may not, and may not permit others to (including any Authorized User):
    • (i)Reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Services;
    • (ii)Modify, translate, adapt, alter, or create derivative works from the Services;
    • (iii)Copy, distribute, publicly display, transmit, sell, rent, lease, or otherwise exploit the Services;
    • (iv)Distribute, sublicense, rent, lease, loan or grant any third-party access to or use of the Services to any third party;
    • (v)Harvest, collect, gather, or assemble information or data regarding other subscribers;
    • (vi)Transmit through or post on the Services unlawful, immoral, libelous, tortious, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors;
    • (vii)Transmit material containing software viruses or other harmful or deleterious computer codes, files, scripts, agents, or programs;
    • (viii)Interfere with or disrupt the integrity or performance of the Services or the data contained therein;
    • (ix)Attempt to gain unauthorized access to the Services, computer systems, or networks related to the Services;
    • (x)Harass or interfere with another subscriber or end-user's use and enjoyment of the Services;
    • (xi)Use the Services, or any information learned, observed, derived, or obtained from the Services, including any non-public workflows, configurations, features, functionality, screens, outputs, reports, logic, processes, or other non-public aspects of the Services, to develop, improve, support, market, or assist any product or service that competes with the Services; or
    • (xii)Disclose, share, provide, or otherwise make available any non-public information regarding the Services to any competitor of Shepherd, or to any person or entity for the purpose of developing, improving, supporting, or marketing a competing product or service.
  • (d)Service Levels. The Services are also subject to Shepherd's services levels attached to the Client Order Form as Attachment 2.

3. Third-Party Services.

The Services may include or interoperate with third-party applications, services, or content, including integrations, widgets, or embedded features ("Third-Party Services"). Client may choose to enable or use such Third-Party Services. In addition, certain Third-Party Services or features may be made available within the Services by Shepherd. Client acknowledges and agrees that:

  • (a)Third-Party Services are not provided by Shepherd and are subject to their own terms and privacy policies;
  • (b)Shepherd does not control and is not responsible for the operation, security, or data handling practices of any Third-Party Services; and
  • (c)any interaction between Client or its end users and a Third-Party Service is solely between those parties.

To the extent Third-Party Services are presented within the Services (including within communications generated through the Services), Shepherd does not transmit personal information to such third parties unless and until an end user chooses to interact with the Third-Party Service.

The Services may include links, widgets, or embedded content from third-party services that are presented within the user interface or within communications generated through the Services. Shepherd does not transmit personal information to such third parties unless and until an end user chooses to interact with the third-party service. Any information provided by an end user to a third party is governed by that third party's terms and privacy policy.

4. Fees and Payment.

  • (a)Services Fees and Other Fees. In exchange for the Services to be provided and the licenses granted under these Terms, commencing on the Service Start Date, Client shall pay Shepherd the fees identified in the applicable Client Order Form, plus any other applicable fees, costs, and expenses contained in the Client Order Form and these Terms (collectively, the "Fees"). Except as expressly stated in a Client Order Form, all Fees are non-refundable and non-cancellable. Unless otherwise set forth in the applicable Client Order Form, all Fees are payable in advance on a monthly basis and are based on the Services and the number of Authorized Users identified in the Client Order Form. Client shall inform Shepherd of any increases in the number of Authorized Users no later than seven (7) days after the date of such increase and the Client Order Form will be deemed amended accordingly.
  • (b)Late Payments. If Client fails to pay the Fees when due, Shepherd shall be entitled to interest from the day on which the Fees became due. Both parties agree that the rate of interest on overdue invoices shall be 1.5% per month, or the maximum amount allowable by applicable law, whichever is greater. Client shall be responsible for all reasonable costs of collection incurred by Shepherd, including attorneys' fees and expenses, to the extent permitted by law. In addition to any other remedies available, Shepherd may suspend access to the Services upon thirty (30) days' written notice for any undisputed payment that is more than thirty (30) days past due. Shepherd shall not be liable for any damages arising from such suspension.
  • (c)Fee Changes. Shepherd may modify Fees applicable to renewal terms by providing Client at least thirty (30) days' prior written notice. Any modified Fees shall apply only to renewal terms and shall not apply to the then-current term.
  • (d)Payment Disputes. If Client believes that Shepherd has charged Client incorrectly, Client must notify Shepherd in writing within thirty (30) days after the date of the payment in which the alleged error first appears, specifying the nature of the dispute in reasonable detail. If Client does not provide such notice within this period, the invoice shall be deemed accepted. Client shall pay all undisputed portions of any invoice when due. All payments shall be made without setoff, recoupment, deduction, or withholding, except as required by applicable law.
  • (d)Taxes. Client will be responsible for, and will promptly pay or reimburse Shepherd for, the payment of all sales, use, excise, value-added, or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Shepherd that is in accordance with the direction or request of Client) that are based on or with respect to any Services or goods provided by Shepherd to Client, or the amounts payable to Shepherd therefore.

5. Professional Services.

  • (a)During the Term, Client may request Shepherd to perform professional services in the nature of software development, customization add-in, documentation, training, testing, integration services, and any other similar services that Shepherd may offer (hereinafter, "Professional Services"). Upon receipt of a request, Shepherd may provide Client with a written proposal, and when the Parties agree to all requirements and specifications of the proposed Professional Services, a Task Order for the Professional Services, in the form of Exhibit B, shall be executed by the Parties. All Task Orders shall be subject to the terms and conditions of these Terms, unless otherwise set forth in the Task Order. Services performed by Shepherd are not exclusive to Client, and Shepherd may perform services of any type or nature for any other person or entity at any time.
  • (b)Data Migration. If Client elects data migration services, Shepherd may provide such services as part of onboarding. Shepherd may cover the initial cost of a standard data migration; however, if Client delays onboarding for more than five (5) months after initiation of migration, cancels the Services within the first twelve (12) months, or fails to complete implementation, Client will be responsible for a migration fee of $2,750. Shepherd will use commercially reasonable efforts to identify and correct errors within supported data sets during migration. Data migration services will be available for a period of up to ninety (90) days from the established launch date.

6. Access.

  • (a)Services. Client shall acquire, install, operate, and maintain at Client's expense all communications lines, equipment, software, services, and related technology necessary to receive, access, and use the Services. Except as expressly stated herein or on an applicable Client Order Form, Client is prohibited from and will have no right to: (i) allow any third party (which may include agents, contractors, affiliates, or other third-party representatives acting on behalf of Client) to access and/or use the Services; and (ii) allow access to or use of the Services outside of the United States of America (including any Authorized User).
  • (b)Delivery and Acceptance. Shepherd will make the Services available to Client as indicated on the Client Order Form. The Services will be deemed accepted upon the Service Start Date. Any updates, bug fixes, or upgrades ("Corrections") to the Services will be deemed accepted by Client on the day such Corrections are first made available to Client or accessed by Client, whichever is earlier.
  • (c)Account Responsibility. Client is responsible for all access to and use of the Services under its accounts, including by all Authorized Users. Client shall ensure that all Authorized Users maintain the confidentiality of their login credentials and do not share access credentials. Client will promptly notify Shepherd of any unauthorized access to or use of the Services. Client is responsible for any act or omission of its Authorized Users that would constitute a breach of these Terms if taken by Client itself. Shepherd will not be liable for any loss or damage arising from Client's failure to safeguard account credentials.

7. Service Modifications and Features.

Shepherd may modify, enhance, or introduce new features or functionality to the Services from time to time. Where such features include third-party content, integrations, or functionality that may appear in Client workflows or communications, Shepherd will use commercially reasonable efforts to provide notice to Client and, where practicable, provide the ability to disable such features.

8. Reports and Records.

Client shall maintain accurate records containing the following information, copies of which Shepherd shall be entitled to receive upon seven (7) days prior written notice to Client: (i) the address of each Office where at least one Display Device is located; (ii) the total number of Display Devices and Authorized Users at each Office; and (iii) the Service(s) received by each Authorized User on each Display Device. No Display Device may be accessed on a regular basis by more than one Authorized User, unless additional fees for such access have been agreed to in writing by the parties hereto in the applicable Order Form. Shepherd may, upon prior written notice to Client, reasonably request Client to maintain records containing additional information related to the Services and Client's use thereof. In addition, Shepherd may implement and use, but is not required to, various software and tools to monitor Client's use of the Services, as Shepherd deems reasonably necessary, in order to determine Client's compliance with the terms of these Terms.

9. Audits and Inspections.

For the purpose of verifying compliance with these Terms, Shepherd (and Shepherd's authorized representatives) shall have the right, during normal business hours upon reasonable advance notice and without material disruption to Client's business, to audit and inspect from time to time Client's offices, books, and records relevant to the Services and to observe the use made of the Services and the manner in which each Display Device and Authorized User accesses the Services. If such audit or inspection pursuant to this Section indicate that Client is not in compliance with these Terms (including any Order Form), such as more Authorized Users accessing the Services than permitted and/or purchased by Client under an applicable Order Form, Client shall pay Shepherd the shortfall in Fees, retrospectively to the date the noncompliance first occurred (such as the date the number of Authorized Users first exceeded the permitted number as stated in the applicable Order Form). If such underpayment exceeds three percent (3%) of the Fees due during the relevant period, Client shall reimburse Shepherd for Shepherd's reasonable costs associated with such audit or inspection.

10. Mergers and Acquisitions.

For the purpose of calculating the Fees, it is not the parties' intention that the Fees charged under these Terms will include Display Devices, Authorized Users, and/or Services added through a merger or acquisition. Accordingly, in the event of any merger or acquisition that would result in Client's ownership or control of Display Devices formerly owned or controlled by another entity, or additional Authorized Users and/or Services being acquired, such additional Display Devices, Authorized Users, and/or Services will not be covered by the Fees charged under these Terms. Client agrees that such Display Devices, Authorized Users, and Services shall be subject to additional fees, based upon the then-current listed price for the additional Display Devices, Authorized Users, and/or Services resulting from the acquisition or merger. For the avoidance of doubt a merger and/or acquisition shall not entitle Client to terminate these Terms other than in accordance with the terms herein.

11. Copyright Protection; Use Restrictions; Client License Grant.

  • (a)Client acknowledges that in providing the Services, Shepherd utilizes: (a) the name, logo, and domain name of the product names associated with the Services and other trademarks; (b) certain audio and visual information, documents, software, and other works of authorship; and (c) other technology, hardware, products, processes, algorithms, user interfaces, know-how, and other trade secrets, techniques, designs, inventions, and other tangible or intangible technical material or information (collectively "Shepherd Technology") and that the Shepherd Technology is covered by intellectual property rights owned or licensed by Shepherd ("Shepherd IP Rights"). Other than as expressly set forth in these Terms, no license or other rights in the Shepherd IP Rights are granted to Client, and all such rights are hereby expressly reserved.
  • (b)Client agrees that only Authorized Users shall be permitted access to the Services as set forth in a Client Order Form executed by the Parties. Except as set forth herein or in a Client Order Form, no clients or other persons or entities who are not legal employees of Client or independent contractors consulting for Client in the ordinary course of Client's business may be Authorized Users.
  • (c)Client hereby grants to Shepherd a non-exclusive, royalty-free, worldwide license during the Term to use, copy, store, transmit, modify, and display Client Data solely as necessary to provide, maintain, support, and improve the Services and to perform Shepherd's obligations under these Terms. As between the Parties, Client Data submitted by Client to the Services, whether submitted by Client or by an Authorized User, remains the sole property of Client, and Client reserves all right, title, and interest in and to the Client Data. Notwithstanding the foregoing, Shepherd may collect, create, use, analyze, disclose, license, and otherwise make available data and information derived from Client's and Authorized Users' use of the Services, provided that such data and information is aggregated and de-identified and does not identify Client, any Authorized User, or any individual, and does not contain personally identifiable information or other data prohibited from such use under applicable law. Such aggregated and de-identified data and information will not constitute Client Data and may be used by Shepherd for lawful business purposes, including analytics, benchmarking, product development, industry reporting, and creation of aggregated data insights and products.
  • (d)Client hereby grants Shepherd a non-exclusive, non-transferable, royalty-free license to use Client Marks solely as reasonably necessary to perform its obligations under these Terms and, subject to Client's prior written consent not to be unreasonably withheld, in customer lists and marketing materials identifying Client as a user of the Services.
  • (e)Shepherd will have the right to use, act upon, and freely exploit any suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Client, an Authorized User, or any other third party acting on Client's behalf, without any remuneration, fee, royalty, or expense of any kind, and Shepherd will hereby own all rights, title, and interest in any such suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Client, an Authorized User, or any other third party acting on Client's behalf.

12. Communications Compliance and Messaging Tools.

  • (a)The Services may enable Client to send communications to third parties, including via SMS, email, and other messaging channels. Client is solely responsible for all communications sent using the Services.
  • (b)Client agrees to comply with all applicable laws and regulations governing communications, including without limitation the Telephone Consumer Protection Act (TCPA), Telemarketing Sales Rule (TSR), CAN-SPAM Act, and all applicable state laws.
  • (c)Client represents and warrants that it has obtained all required consents, authorizations, and opt-ins necessary to send communications through the Services.
  • (d)Shepherd does not control, review, or monitor the content of Client communications and shall not be responsible or liable for any communications sent by or on behalf of Client.
  • (e)The Services may include templates, forms, waivers, or suggested content ("Templates") for Client's convenience. Client is solely responsible for reviewing, modifying, and ensuring that all Templates comply with applicable laws and are appropriate for Client's use. Shepherd makes no representations or warranties regarding the legal sufficiency or enforceability of any Templates and shall have no liability arising from Client's use of such Templates.

13. Warranties; Disclaimer.

Each Party warrants and represents that it has the authority to execute, deliver, and perform its obligations under these Terms, having obtained all required Board of Directors' or other consents, and is duly organized or formed, and validly existing and in good standing under the laws of the state of its incorporation or formation. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, CLIENT ACKNOWLEDGES AND AGREES THAT THE SERVICES, THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS, AND SHEPHERD DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Client acknowledges that it has not relied on any representations, warranties, or statements other than those expressly set forth in these Terms.

14. Indemnification.

  • (a)Client Infringement Indemnity. Client, at its expense, will defend, indemnify, and hold Shepherd harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorney's fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Shepherd which relate to a claim, action, lawsuit, or proceeding made or brought against Shepherd by a third party alleging the infringement or violation of such third party's registered patent, trade secret, copyright, or trademark (each a "Shepherd Claim") by way of Shepherd's use of any Client Data, Client Marks, or other information or materials provided by Client in connection with these Terms.
  • (b)Shepherd Infringement Indemnity. Shepherd, at its expense, will defend, indemnify, and hold Client harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorney's fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Client to the extent such directly relates to a claim, action, lawsuit, or proceeding made or brought against Client by a third party alleging the infringement or violation of such third party's registered patent, trade secret, copyright, or trademark (each a "Client Claim") by way of Client's use of the Services that Shepherd provides to Client under these Terms.
  • (c)For purposes herein, each Party, when providing indemnification, will be termed an "Indemnifying Party" and each Party, when receiving the benefits of indemnification, shall be termed an "Indemnified Party." The term "Indemnified Party" will include the other Party's respective shareholders, officers, directors, administrators, managers, employees, servants and agents, and successors and assigns. The Indemnifying Party's obligations under this Section will be subject to the Indemnified Party providing the Indemnifying Party prompt notice of the event giving rise to an indemnity obligation, providing reasonable cooperation and assistance in the defense or settlement of any claim (at the Indemnifying Party's sole cost and expense), and granting the Indemnifying Party control over the defense and settlement of the same. The Indemnifying Party will have the right to consent to any settlement or judgment that is binding upon the Indemnifying Party.
  • (d)In the event a court of competent jurisdiction makes a determination that the Services infringes on or otherwise violates any third-party registered patent, trade secret, copyright, or trademark, or if Shepherd determines that the Services likely infringes or otherwise violates such third party's foregoing intellectual property rights, Shepherd, at its sole option and expense, will:
    • (a)modify the allegedly infringing or violating portion of the Services so as to make it noninfringing and non-violating;
    • (b)replace the allegedly infringing or violating Services, or any portion thereof, with a noninfringing and/or non-violating product having reasonably equivalent functionality;
    • (c)obtain the right for Client to continue using the allegedly infringing or violating portion of the Services; or
    • (d)revoke the license to the allegedly infringing or violating Services and provide a prorata refund to Client for all fees prepaid for the Services and not yet earned by Shepherd.
  • (e)Shepherd will have no obligation under these Terms relating to any indemnification if a Client Claim results from any of the following: (i) Client's continued use of the infringing or violating Services after Shepherd first makes an applicable Correction available to Client; (ii) Client's modification of the Services (including a third party acting on its behalf); or (iii) Client's use of the Services in any manner other than as permitted under these Terms.

15. Limitation of Liability.

SHEPHERD AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AND CONTRACTORS ("SHEPHERD PARTIES") WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO CLIENT, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, AND LOST REVENUES (COLLECTIVELY, THE "EXCLUDED DAMAGES"), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF SHEPHERD PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF SHEPHERD PARTIES ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT, EXCEPT FOR SHEPHERD'S INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 11, EXCEED THE AGGREGATE AMOUNT PAID BY CLIENT HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. FOR ANY SHEPHERD INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 12, IN NO EVENT WILL THE LIABILITY OF SHEPHERD PARTIES ARISING OUT OF ANY SUCH CLAIM EXCEED THE AGGREGATE AMOUNT PAID BY CLIENT HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN SHEPHERD PARTIES' LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.

16. Term; Renewal; Termination.

  • (a)Term and Renewal. This Agreement begins on the Effective Date and continues for the initial term specified in the applicable Client Order Form ("Initial Term"). Unless otherwise stated in a Client Order Form, each Client Order Form shall automatically renew for successive renewal terms of equal length (each, a "Renewal Term") unless either party provides written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
  • (b)Termination by Client. Client may terminate a Client Order Form upon at least fourteen (14) days' written notice, provided that all fees due through the effective date of termination are paid in full. Termination shall not relieve Client of any payment obligations accrued prior to the effective date of termination.
  • (c)Termination by Shepherd. Shepherd may terminate these Terms or any Client Order Form upon ninety (90) days' written notice, or immediately upon written notice if Shepherd determines that Client has materially breached these Terms, failed to pay undisputed fees when due, or created a security, legal, or operational risk to the Services or its users.
  • (d)Effect of Termination. Upon termination or expiration of a Client Order Form for any reason:
    • (i)Client's right to access and use the Services under such Client Order Form shall immediately cease;
    • (ii)all accrued but unpaid fees shall become immediately due and payable; and
    • (iii)Sections that by their nature should survive termination shall survive, including payment obligations, confidentiality, limitation of liability, indemnification, and data rights provisions.

17. Confidentiality.

Client and Shepherd understand and agree that in the performance of these Terms each Party may have access to private or Confidential Information of the other Party, which either is marked as "confidential" or the receiving party should reasonably know under the circumstances that such information is confidential and/or proprietary information of the other Party. Each Party shall hold such Confidential Information in confidence and not, without the consent of the other, disclose it to a third party or use it for any purpose other than in performance of these Terms. The disclosure of the Confidential Information to the receiving Party does not confer upon the receiving Party any license, interest, or right of any kind in or to the Confidential Information, except as provided under these Terms. At all times and notwithstanding any termination or expiration of these Terms, the receiving Party agrees that it will hold in strict confidence and not disclose to any third party the Confidential Information of the disclosing Party, except as approved in writing by the disclosing Party. The receiving Party will only permit access to the Confidential Information of the disclosing Party to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations substantially similar to those contained in these Terms. The receiving Party will be responsible to the disclosing Party for any third party's use and disclosure of the Confidential Information that the receiving Party provides to such third party in accordance with these Terms. The receiving Party will use at least the same degree of care it would use to protect its own Confidential Information of like importance, but in any case with no less than a reasonable degree of care, including maintaining information security standards for such Confidential Information as are commercially reasonable and customary for the type of Confidential Information. This obligation of confidentiality shall not apply to information that is: (i) generally available to the public through no act or omission of the receiving Party, (ii) becomes known to the receiving Party through a third party with no obligation of confidentiality, (iii) was in the receiving Party's possession before receipt from the disclosing Party, (iv) is independently developed by the receiving Party, or (v) is required to be disclosed by law, court, or by any government or regulatory authority. If any Confidential Information is required to be disclosed by statute, rule, regulation, or order of any court of competent jurisdiction, before any such disclosure the receiving Party will provide notice to the disclosing Party reasonably sufficient to allow the disclosing Party the opportunity to apply for a protective order or other restriction regarding such disclosure. All Confidential Information will remain the exclusive property of the disclosing Party. Each Party to these Terms will immediately notify the other Party in writing upon discovery of any unauthorized loss, access, or disclosure of the Confidential Information of the other Party. Upon termination or expiration of these Terms, upon written request of the other Party, or when no longer needed by either Party for fulfillment of its obligations under these Terms, each Party will either: (a) promptly return to the other Party all documents and other tangible materials representing the other Party's Confidential Information, and all copies thereof in its possession or control; or (b) destroy all tangible copies of the other Party's Confidential Information in its possession or control by the following methods. Notwithstanding the foregoing, each Party's legal counsel may retain one copy of the disclosing Party's Confidential Information for its files solely to provide a record of such Confidential Information for archival purposes. If either Party should breach or threaten to breach any provision of this Section of the Agreement, the non-breaching Party, in addition to any other remedy it may have at law or in equity, will be entitled to seek a restraining order, injunction, or other similar remedy in order to specifically enforce the provisions of these Terms. Each Party specifically acknowledges that money damages alone would be an inadequate remedy for the injuries and damages that would be suffered and incurred by the non-breaching Party as a result of a breach of any provision of this Section. In the event that either Party should seek an injunction hereunder, the other Party hereby waives any requirement for the submission of proof of the economic value of any Confidential Information or the posting of a bond or any other security. In the event of a dispute between the Parties, the non-prevailing Party will pay all costs and expenses, including, but not limited to, reasonable attorney's fees, associated with resolving the dispute. For purposes of these Terms, "Confidential Information" means any valuable, non-public business, technical, financial, or commercial information disclosed by or on behalf of a Party to the other Party, whether in oral, written, electronic, visual, or other form, including these Terms and all matters discussed relating to these Terms, that is designated or identified as confidential at the time of disclosure or is by its nature clearly recognizable as confidential information to a reasonably prudent person with knowledge of the disclosing Party's business and industry. Without limiting the foregoing, Shepherd's Confidential Information includes the Services, the software underlying the Services, all non-public features, functionality, workflows, configurations, screens, designs, processes, methods, documentation, pricing, product plans, and any other non-public aspects of the Services. Client shall not use Shepherd's Confidential Information to develop, improve, support, market, or assist any product or service that competes with the Services, nor disclose Shepherd's Confidential Information to any competitor of Shepherd.

18. Miscellaneous.

  • (a)Order of Precedence. The Client Order Form, together with these Terms, the Shepherd PIMS Privacy Policy, the Service Levels attached to the Client Order Form (Attachment 2), any applicable Government Entity Addendum (Attachment 3), and any applicable Work Orders (collectively, the "Agreement"), are intended to be read together and construed as a single integrated agreement. In the event of any conflict or inconsistency among the components of the Agreement, the following order of precedence shall apply:
    • (i)the Government Entity Addendum, solely with respect to Clients that are governmental or public entities;
    • (ii)the Client Order Form;
    • (iii)any applicable Work Order, solely with respect to the specific Professional Services described therein;
    • (iv)any applicable Data Processing Addendum;
    • (v)these Terms of Service;
    • (vi)the Shepherd PIMS Privacy Policy; and
    • (vii)the Service Levels (Attachment 2).
    For clarity, the Service Levels describe operational objectives only and do not modify or expand Shepherd's obligations, warranties, or liabilities under the Agreement. These Terms shall control over any conflicting terms in Client purchase orders or other documents, and any such additional or inconsistent terms are hereby rejected unless expressly agreed to in writing by Shepherd.
  • (b)Notice. All notices to a Party hereunder shall be in writing, and delivered by certified mail, return receipt requested, overnight courier service, or by facsimile with confirmation by the above described mailing methods to the address(es) set forth in these Terms, or to a different address which a Party may give written notice of pursuant to this Section from time to time. Notice will be deemed delivered and received on the date it is actually received or as stated in written evidence of receipt from the applicable mail courier.
  • (b)Amendment. Shepherd may update or modify these Terms from time to time. If Shepherd makes material changes, Shepherd will provide notice to Client, which may include notice through the Services or via email. Continued use of the Services after such changes become effective constitutes acceptance of the revised Agreement. If Client does not agree to the updated Agreement, Client must stop using the Services. Notwithstanding the foregoing, for governmental entities, updates shall be governed by the Government Entity Addendum.
  • (c)Assignment. Client may not assign these Terms without Shepherd's prior written consent, which shall not be unreasonably withheld. Shepherd may assign these Terms, in whole or in part, without notice or consent to any affiliate or in connection with a merger, acquisition, reorganization, or sale of assets. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors, trustees, administrators, and assigns.
  • (d)Survival. Any and all provisions, promises, and warranties contained herein, which by their nature or effect are required or intended to be observed, kept, or performed after termination or expiration of these Terms, will survive the termination or expiration of these Terms and remain binding upon and for the benefit of the Parties hereto.
  • (e)Independent Contractor. Shepherd is acting in performance of these Terms as an independent contractor. This Agreement shall not be construed as creating an employee-employer, agency, partnership, or joint venture relationship between the Parties. Each Party shall have the obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all work to be performed under these Terms by them and shall be liable for the acts and omissions of their own employees and agents in performing their respective obligations hereunder.
  • (f)Binding Effect and Third-Party Beneficiary. Except if specifically stated in these Terms, neither Party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other Party. No third party is a beneficiary of these Terms.
  • (g)Waiver of Rights. Except as expressly set forth to the contrary, all remedies available to either Party for breach of these Terms under these Terms, at law, or in equity, are cumulative and non-exclusive. No failure by either Party to exercise, or any delay in exercising and dealing, with respect to any right of such Party regarding an obligation of the other Party to these Terms shall operate as a waiver thereof, unless, and then only to the extent, agreed to in writing by both Parties. Any single or partial exercise by either Party of any of its rights shall not preclude such Party from any other or further exercise of such right or the exercise of any other right. Any single or partial waiver by either Party of any obligation of the other Party under these Terms shall constitute a waiver of such obligation only as specified in such waiver and shall not constitute a waiver of any other obligation.
  • (h)Injunctive Relief. If Client breaches Section 2 of these Terms, Shepherd will be entitled, in addition to any other rights available under these Terms, or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Client acknowledges and agrees not to contest such application.
  • (i)Severability. If any provision or portion thereof of these Terms or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of these Terms will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.
  • (j)Choice of Law and Venue.
    • (i)This Agreement, its interpretation, performance or any breach thereof, will be construed in accordance with, governed by, and all questions with respect thereto will be determined by the laws of the State of Delaware applicable to contracts entered into and wholly performed within said state.
    • (ii)Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in New York City before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
    • (iii)The non-prevailing Party shall be liable to the prevailing Party for all costs and expenses related to any litigation or dispute resolution, including reasonable attorney's fees
  • (k)Force Majeure. Any failure or delay by Shepherd in the performance of its obligations pursuant to these Terms will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States, or any nation where the obligations under these Terms are to be executed, strikes, supplier and third-party failure, lockouts, labor difficulties, quarantines, pandemics, national health emergencies or health related orders, or other similar actions taken by governmental authorities, or any similar cause beyond the reasonable control of Shepherd.
  • (l)Entire Agreement. This Agreement contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement's subject matter.
  • (m)Counterparts. This Agreement may be executed in one or more counterparts, each of which will for all purposes be deemed an original and all of which will constitute the same instrument.
  • (n)Non-Solicitation. Each Party agrees that, during the term of these Terms and for twelve (12) months thereafter ("Restricted Period"), it will not, directly or indirectly, solicit or induce any employee of the other Party to consider or accept employment with the first Party. Neither Party is prohibited from responding to or hiring employees of the other Party who inquire about employment with the first Party on their own accord or in response to a public advertisement or employment solicitation in general.
  • (o)Headings. Headings of particular sections are inserted only for convenience and are not to be considered a part of these Terms or be used to define, limit, or construe the scope of any term or provision of these Terms. Should any provision of these Terms require judicial interpretation, the Parties agree that the court interpreting or construing the same will not apply a presumption that the terms of these Terms will be more strictly construed against one Party than against the other.
  • (p)Legal Counsel. Each Party acknowledges that it has had the right to seek independent legal counsel with respect to these Terms, and that each Party has substantially participated in the drafting and negotiation of these Terms. No provision hereof will be construed against one Party by virtue of the fact that such provision was drafted by such Party.