Terms

Terms

Last Updated: May 2022

This Master Services Agreement (“Agreement”) is made between Avvinue, Inc., a Delaware C Corp, operating under the DBA 'Pawtrip', (“Avvinue”, “Pawtrip”, “we”, “us” or “our”), and  __________ ("Customer, “you” or “your"); each a “Party” and together, the “Parties”. This Agreement applies to any use of and access to the Software Services and other services related to the deployment, support and maintenance of the Software Services (collectively the “Services”) by you and your Affiliates. This Agreement is effective (“Effective Date”) on __________. 

The English language version of this Agreement and any notice or other documents relating to this Agreement shall prevail if there is a conflict. Capitalized terms not defined in the body of this Agreement shall have the meanings set forth in the Exhibit E: Definitions, or the Exhibit A: Data Processing Agreement.

1. Services

1. Documentation. Services provided by Pawtrip are described in Statements of Work and/or Order Forms attached as exhibits to this Agreement. 
2. Service Level Agreements. Pawtrip will provide the Services during the Term in accordance with the Service Level Agreements (or “SLAs”) attached hereto as exhibits. 
3. Changes to Services. Your access to the Services may be disrupted or suspended and we may also change or discontinue any aspect of our Services at any time, without notice to you. 
4. Payment Processing. 

Payment Processing Services are provided by our third party payment processing partners as Third Party Offerings and any procurement by you or your affiliates will be subject to a separate merchant agreement which will be solely between you (or your affiliate) and the third party processor. The Services are subject to, and you will comply with,  the terms and conditions of any applicable merchant agreements, including the Stripe Connected Account Agreement and Stripe Terms of Service,  and all applicable card network rules, policies, laws and regulations, at all times while sending or receiving payments through the Services.

1.5. Ancillary Services. Ancillary Services offered to and purchased by End Users will be subject to a 50% revenue share between Pawtrip and Customer. 

2. Your Responsibilities

1. Liability for Affiliates and End Users. You are responsible for all activity occurring under or relating to your account, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and End Users. You will ensure that your affiliates and End Users comply with relevant provisions of this Agreement, including any supplemental terms and acceptable use policies provided or made available by Pawtrip, and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. 
2. Data; Unauthorized Access; Maintaining Networks. You will: (a) have sole responsibility for the accuracy and quality of Customer Data and for ensuring that your collection and use of Customer Data complies with applicable laws, including those related to data privacy and transmission of personal data; and (b) prevent unauthorized access to, or use of, the Services, and notify Pawtrip promptly of any such unauthorized access or use.
3. Restrictions on Use. You and your affiliates and End Users will not: (i) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (ii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iii) post, transmit or otherwise make available through or in connection with the Services any computer code, files, scripts agents or programs that are, or may be, harmful or invasive; (iv) except to comply with section 2.1, restrict or inhibit any other person or entity from using the Services; or (v) remove any copyright, trademark or other proprietary rights notice from the Services.
4. Consent. You are responsible for ensuring you have obtained the requisite level of consent necessary from End Users when utilizing the Services, including, but not limited to, consent to transmit information to service providers, third parties and foreign jurisdictions.

2. Fees and Payment

1. Services Fees. Unless otherwise stated on an Order Form, fees for the Software Services (the “Subscription Fees” and “Transactional Fees”) and other Services are set forth on the applicable Order Form (collectively, the “Software Services Fees” or “Fees”).
2. Change in Fees. Pawtrip may increase any Fees specified in an Order Form on each annual anniversary date of this Agreement by providing forty-five (45) days written notice. The increase will not become effective until the subsequent Renewal Term. 
3. Payment Terms. You agree to pay the Fees and any other applicable fees stated on an Order Form or otherwise specified in this Agreement. YOU ARE RESPONSIBLE FOR ALL FEES FOR THE ENTIRE TERM. All payment obligations under this Agreement are non-cancelable and all Fees paid are non-refundable. Unless otherwise stated on an Order Form, Fees must be paid in advance of each billing period. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Pawtrip and notifying Pawtrip of any changes to such information.
4. Payment Errors. If you believe a payment has been processed in error, you must provide written notice to Pawtrip within thirty (30) days after the date of payment, specifying the nature of the error and the amount in dispute ("Payment Error Notice"). The payment will be deemed final if the Payment Error Notice is not timely received by Pawtrip.
5. Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If Pawtrip is legally required to pay or collect any Taxes on your behalf, Pawtrip will invoice you and you will pay the invoiced amount. 

2. Intellectual Property Rights.

1. Pawtrip Intellectual Property. Pawtrip or its affiliates own all right, title and interest in and to the Services, and Pawtrip Marks, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, Pawtrip and its affiliates reserve all rights, title and interest in and to the Services, the Pawtrip Data and Aggregated Data, including, without limitation, all related intellectual property rights. You agree not to display or use any Pawtrip Marks in any manner without Pawtrip’s express prior written permission. 
2. License Grant to You. Pawtrip hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services set forth in an Order Form, during the Term and solely for your internal business purposes. You will not: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, or otherwise make the Services available to any third party, other than to affiliates and End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by Pawtrip in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
3. License Grant to Pawtrip. You hereby grant to Pawtrip and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to: (a) modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, affiliates or End Users relating to the Services or Pawtrip’s or its affiliates’ business(es); and (b) to use your business name(s), trademarks, service marks, logos or any publicly available images (collectively, “Your Marks”) in connection with: (x) providing the Services, and (y) for marketing and promotional purposes in connection with Pawtrip’s business. Other than those rights specifically granted to Pawtrip or its affiliates herein, all right, title and interest in and to Your Marks are expressly reserved by you.

2. Data Ownership and Use

1. Customer Data. As between you and Pawtrip, you own all right, title and interest in Customer Data. You hereby grant to Pawtrip a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of, and otherwise use Customer Data for the purposes of providing, improving and developing Pawtrip’s or its affiliates’ products and services and/or complementary products and services of our partners. You represent and warrant to Pawtrip that you have all rights necessary to grant the licenses in this section, and that your provision and use of Customer Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
2. Pawtrip Data and Aggregated Data. Any data or information collected by Pawtrip independently and without access to, reference to or use of any of Customer Data, including, without limitation, any data or information Pawtrip obtains about End Users through the Pawtrip Software Services (whether the same as Customer Data or otherwise) is “Pawtrip Data”). You agree Pawtrip owns all right, title, and interest in Pawtrip Data and Aggregated Data, notwithstanding section 6. You also agree that nothing in this Agreement will prohibit Pawtrip or its affiliates from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users or is reasonably linkable to any End User or household.
3. Personal Information. You acknowledge and agree that Pawtrip may process Customer Data including Personal Information as described in the Data Processing Addendum, attached hereto as Exhibit A.
4. Personal Information (EU, UK, CA Residents). To the extent that Pawtrip processes Customer Data originating from the European Economic Area, the United Kingdom, or other jurisdictions that impose similar statutory obligations, or with respect to Personal Information (defined within the Data Processing Addendum) that is processed on behalf of you which relates to residents of the State of California, the terms of the Data Processing Addendum attached hereto as Exhibit A apply between the Parties.
5. Protection and Security. During the Term, Pawtrip will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, according to Exhibit A.
6. Notice of Unauthorized Disclosure. If either Party discovers that there has been a disclosure of Customer Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party within twenty-four (24) hours of confirmation of such unauthorized disclosure. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.

2. Confidential Information

A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party's prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party.

7. Term, Termination and Suspension

1. Term. The term of this Agreement shall begin upon the Effective Date and continue as long as an Order Form referencing or incorporated into this MSA remains valid and in effect, unless terminated in accordance with the terms of this Agreement (the “Term”). The initial term of each Order Form under this Agreement (“Order Form Initial Term”) shall begin upon the Order Form Effective Date. Except as expressly identified in the Order Form, each Order Form shall automatically renew for successive renewal periods of one (1) year, unless either Party provides notice of non-renewal to the other Party no less than thirty (30) days prior to the end of the then-current initial term or renewal term (each an “Order Form Renewal Term”; collectively, together with the Order Form Initial Term, the “Order Form Term”). 
2. Termination for Convenience. Either Party may terminate this Agreement for convenience without cause by providing a written termination notice at least 90 days before the intended termination date ("Effective Termination Date"). Upon the Effective Termination Date, Pawtrip shall cease work. If the Customer terminates for convenience, they shall pay Pawtrip the greater of (i) the average monthly Fees due under the Order Form for the last 12 months before termination notice or (ii) any monthly minimum specified in the associated Order Form, multiplied by the remaining months of the Term, as liquidated damages (not a penalty) for early termination. If Pawtrip terminates for convenience, or the Customer terminates due to Pawtrip's material uncured breach, the Customer won't owe the amount specified for early termination.
3. Termination for Cause. Either party may terminate the Agreement and any Order Form, effective immediately upon notice to the other Party, if the other Party or an affiliate is in material breach of the Agreement. In the event of a termination pursuant to this section, in addition to other amounts the breaching Party may owe the non-breaching Party, the breaching Party must immediately pay any unpaid Fees associated with the remainder of the Term. In no event will any termination relieve the breaching Party of its obligation to pay any Fees payable to the non-breaching Party for the period prior to the effective date of termination..
4. Rights on Termination or Expiration. Upon termination or expiration of this Agreement (a) all Order Forms will automatically terminate and be of no force or effect; (b) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (c) except as specified in the following paragraph, Pawtrip will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law.
5. Right to Terminate or Suspend Services. We may suspend or terminate your access to and use of the Services (or any portion thereof) at any time without notice if we believe (a) that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to Pawtrip or any third party, (b) that we are required to do so by law, or (c) where the Parties do not agree on the use of a sub-processor.
6. Customer Sandbox Termination Period. For the purposes of this clause, “Sandbox” refers to an isolated, controlled, and temporary testing environment that allows the Customer to evaluate the Software Service provided by the Company. Pawtrip shall grant the Customer a thirty (30) calendar day period, commencing upon the activation of the Software Service, during which the Customer can test and evaluate whether the Software Service meets their specifications and requirements (“Sandbox Period”). If, during the Sandbox Period, the Customer determines that the Software Service does not meet reasonably expected specifications and requirements, the Customer shall have the right to terminate this Agreement without penalty by providing written notice of termination to Pawtrip during the Sandbox Period. Parties may extend the Sandbox Period by mutual written agreement, for which email communication is sufficient. 

7. Warranties & Disclaimer

1. Warranty of Functionality. Pawtrip warrants to you that during a Term: (a) the subscribed Software Service will perform materially in accordance with the functionality described in the Documentation applicable to such Software Service; and (b) such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that Pawtrip will use commercially reasonable efforts to modify the applicable Services to achieve the functionality described above. If Pawtrip is unable to restore such functionality, you may terminate the Agreement by providing written notice to Pawtrip, and you will be entitled to receive a pro-rata refund of any pre-paid fees. Pawtrip will have no obligation with respect to a warranty claim under this section 8.1 unless notified by you in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any free, trial or beta Services.
2. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PAWTRIP MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. PAWTRIP DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN SECTION 8.1 , THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH PAWTRIP AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “PAWTRIP PARTIES”). YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS).
   

9. Indemnification

1. Indemnification by Pawtrip. Pawtrip will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any purchased service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer ”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Pawtrip in writing of, a Claim Against Customer, provided Customer: (a) promptly gives Pawtrip written notice of the Claim Against Customer, (b) gives Pawtrip sole control of the defense and settlement of the Claim Against Customer (except that Pawtrip may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Pawtrip all reasonable assistance, at Pawtrip’s expense. 
2. Indemnification by Customer. Customer will defend Pawtrip Parties against any claim, demand, suit or proceeding made or brought against Pawtrip by a third party (a) alleging that the combination of a non-Pawtrip service or configuration provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from (i) Customer’s use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form, (ii) any Customer Data or Customer’s use of Customer Data with the Services, or (iii) a non-Pawtrip service provided by Customer (each a “Claim Against Pawtrip ”), and will indemnify Pawtrip from any damages, attorney fees and costs finally awarded against Pawtrip as a result of, or for any amounts paid by Pawtrip under a settlement approved by Customer in writing of, a Claim Against Pawtrip, provided Pawtrip: (a) promptly gives Customer written notice of the Claim Against Pawtrip, (b) gives Customer sole control of the defense and settlement of the Claim Against Pawtrip (except that Customer may not settle any Claim Against Pawtrip unless it unconditionally releases Pawtrip of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Pawtrip arises from Pawtrip’s breach of this Agreement or applicable Order Forms.
3. Exclusive Remedy. This “ Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

9. Limitations and Exclusions of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PAWTRIP PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT OR ONE HUNDRED DOLLARS ($100.00) (USD), WHICHEVER IS GREATER. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH PAWTRIP AND THE PAWTRIP PARTIES. IN NO EVENT WILL ANY PAWTRIP PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF PAWTRIP, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

11. Miscellaneous

1. Governing Law, Jurisdiction and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Florida and controlling United States federal law, any state or federal court sitting in the City of Miami shall have exclusive jurisdiction. The U.N. Convention on the International Sale of Goods will not apply.
2. Mandatory Informal Dispute Resolution. If you have any dispute with Pawtrip arising out of or relating to this Agreement, you agree to notify Pawtrip in writing with a brief, written description of the dispute and your contact information, and Pawtrip will have thirty (30) days from the date of receipt within which to attempt a resolution to the Parties’ reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with a mutually agreed arbitration process.
3. Entire Agreement. This Agreement, together with any Order Forms, Statements of Work, exhibits and addendums and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between you and Pawtrip with respect to the subject matter hereof. In the event of a conflict between an Order Form and this Agreement, the Order Form will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between Pawtrip, on the one hand, and you or any affiliate, on the other hand.
4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. 
5. Survival. The sections titled “Fees and Payment,” “Intellectual Property Rights,” “Confidential Information,” “Warranties & Disclaimer,” “Indemnification,” “Limitations and Exclusions of Liability,” “Rights on Termination or Expiration,” “Survival” and any other sections that should logically survive the termination or expiration of this agreement so as to fulfill the original intent of the Parties will survive any termination or expiration of this Agreement, and the section titled “Data Ownership and Use” will survive any termination or expiration of this Agreement for so long as Pawtrip retains possession of Customer Data.
6. Notices. Any notices provided by Pawtrip under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. Except as otherwise specified in the Agreement, any notices to Pawtrip under this Agreement must be delivered via email or by first class registered U.S. mail, or overnight courier, to Pawtrip, Inc., Attn: Pawtrip Customer Support, 1321 Upland Drive PMB 3975 Houston, TX 77043 USA, support@pawtrip.com.

Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Pawtrip’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.