SOFTWARE SERVICES AGREEMENT

This Software Services Agreement (the “Agreement”) is entered into as of the Effective Date by and between Instinct Science, LLC, a Delaware limited liability company with its principal place of business at 54 E. Oakland Ave., Doylestown, PA 18901 (“Instinct”), on its own behalf and on behalf of its Affiliates that provide Services hereunder, and the Customer identified on the applicable Service Order (“Customer”). Instinct and Customer are each a “Party” and collectively the “Parties” to this Agreement.

This Agreement governs Customer’s purchase and use of the Services identified on each Service Order. By executing a Service Order that references this Agreement, Customer agrees to be bound by this Agreement. This Agreement supersedes and replaces any Instinct Terms of Use or other online, click-through, or click-wrap terms that Customer or any Authorized User may have accepted with respect to the Services covered by an executed Service Order.

1. DEFINITIONS

Capitalized terms used in this Agreement have the meanings set forth below or as otherwise defined in this Agreement. Additional operational terms are defined in the applicable Service Order or Documentation.

1.1 “Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, where control means the direct or indirect control of greater than fifty percent (50%) of the voting rights or equity interests of a Party or the power to direct or cause the direction of the management of that Party.

1.2 “Authorized User” means Customer’s employees, consultants, contractors, and Affiliates who are authorized by Customer to access and use the Services in accordance with the applicable Service Order.

1.3 “Confidential Information” means non-public information disclosed by one Party to the other that is designated as confidential or that, given the nature of the information or the circumstances of disclosure, reasonably should be understood to be confidential. Instinct’s Confidential Information includes the Instinct IP, the terms of this Agreement, and pricing.

1.4 “Customer Data” means data, content, recordings, documents, and other materials that Customer or its Authorized Users submit to or generate through the Services, including veterinary medical records and animal-owner (client) information, but excluding Usage Data, Deidentified Data, Feedback, and Output.

1.5 “Deidentified Data” means Customer Data that has been processed such that it cannot reasonably be used to identify Customer or any natural person.

1.6 “DPA” means the Instinct Data Processing Agreement, as amended from time to time, which will be provided to a Customer when necessary to comply with applicable law.

1.7 “Documentation” means the official technical specifications, user guides, and other documentation for the Services made available and amended from time to time by Instinct.

1.8 “Effective Date” means the date of last signature on the applicable Service Order, or the date that Customer first accesses the Services, whichever is earlier.

1.9 “Feedback” means suggestions, comments, recommendations, or other feedback relating to the Services provided by Customer or any Authorized User.

1.10 “Fees” means the fees and expenses for the Services set forth in the Service Order.

1.11 “Inputs” means any data, content or materials (including prompts or queries) submitted by Customer to the AI Features. Inputs are Customer Data.

1.12. “Instinct IP” means the Services, the Documentation, all AI Features and underlying models or algorithms, and all software, technology, know-how, and intellectual property embodied in or used to provide the Services, together with all intellectual property rights therein.

1.13 “Output” means content, transcriptions, summaries, drafts, recommendations, or other material that is proprietary to Instinct and provided by AI Features in response to Inputs.

1.14 “Privacy Policy” means the Instinct Privacy Policy located at https://www.instinctdev.wpenginepowered.com/legal/privacy, as amended from time to time.

1.15 “Service Order” means an ordering document executed by Customer and Instinct that specifies the Services purchased, applicable Fees, and any commercial terms, and that incorporates this Agreement by reference.

1.16 “Services” means the offerings made available by Instinct pursuant to one or more Service Orders.

1.17 “Usage Data” means metadata, telemetry, logs, usage patterns, feature-interaction data, and performance information or data related to or derived from Customer’s use of the Services.

2. SERVICES 

2.1 Services.  Instinct will make the Services available to Customer and its Authorized Users in accordance with the applicable Service Order, the Documentation, and this Agreement. Instinct may modify, update, or enhance features of the Services in its sole discretion, provided Instinct will not materially diminish the functionality of the Services during the then-current term without reasonable prior notice to Customer.

2.2 Access Right.  Subject to Customer’s compliance with this Agreement and timely payment of Fees, Instinct grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right, during the Term, to access and use the Services specified in the applicable Service Order solely for use by Customer’s Authorized Users for Customer’s internal business purposes in connection with its veterinary practice operations. 

2.3 Reservation of Rights.  Except for the access right expressly granted in Section 2.2, no rights, title, or interest in or to any Instinct IP are granted to Customer or its Authorized Users, whether by implication, waiver, estoppel, or otherwise. All rights not expressly granted herein are reserved by Instinct.

3. ACCEPTABLE USE

3.1 Accounts; Responsibility.  Customer is responsible for all use of the Services by Customer and its Authorized Users and shall ensure that all such use complies with this Agreement and applicable law. Customer and its Authorized Users must protect the confidentiality of their login credentials. Customer will notify Instinct immediately if it suspects or becomes aware of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised. Customer is liable for the acts and omissions of its Authorized Users in connection with the Services. 

3.2 Restrictions.  Customer shall not, and shall not permit any Authorized User or third party to:

(a) reverse engineer, decompile, disassemble, or attempt to derive the source code, structure, or underlying ideas of the Services or Instinct IP;

(b) copy, modify, or create derivative works of the Services, the Documentation, or any Instinct IP, except as expressly permitted;

(c) rent, lease, sell, sublicense, distribute, or otherwise make available the Services to any third party, whether on a timesharing, service-bureau, or similar basis;

(d) use the Services in violation of applicable law or any third-party right, or to transmit unlawful, infringing, harmful, or misleading content;

(e) use the Services, any Instinct IP, or any Output for competitive analysis, benchmarking, development of a competing product or service, or any purpose to Instinct’s detriment;

(f) use any Instinct IP or Output (including drug information, monographs, clinical guidance, or other content made available through the Services) as training data, fine-tuning data, or Inputs to any artificial-intelligence, machine-learning, neural-network, or large-language-model system, whether owned by Customer or any third party;

(g) permit any AI agent, automated tool, or autonomous process to access or interact with the Services except through features expressly made available for such purpose or with Instinct’s prior written authorization;

(h) use any robot, spider, scraper, or similar means to access, harvest, or scrape the Services or any content therein;

(i) share access credentials, permit shared use of any Authorized User login, or exceed the number of Authorized Users or other usage limits specified in the applicable Service Order; or

(j) publish or disclose any benchmark, performance data, or evaluation of the Services or Output to any third party without Instinct’s prior written consent.

3.3 Compliance with Applicable Law.  Customer is solely responsible for compliance with all laws and regulations applicable to its veterinary practice and its use of the Services, including state veterinary practice acts, pharmacy laws, controlled-substances regulations, recording-consent and wiretapping laws, consumer privacy laws, and applicable AI-specific laws (as further addressed in Sections 6 and 7). Instinct is not responsible for Customer’s compliance with any such law.

3.4 Suspension and Termination for Violation.  Any violation of this Section 3 is a material breach of this Agreement. Instinct may suspend or terminate access to the Services for any such violation of this Section 3 in accordance with Section 13.5 (Suspension) or Section 13.3 (Termination for Cause), as applicable.

4. FEES AND PAYMENT

4.1 Fees.  Customer shall pay Instinct, without offset or deduction, the Fees set forth in the applicable Service Order. Except as otherwise set forth in a Service Order, all Fees are due and payable within thirty (30) days of the invoice date. If any Customer payment is more than thirty (30) days past due, Instinct may charge interest at the rate of one and a half percent (1.5%) (or, if lower, the maximum rate permitted by applicable law) on any unpaid amounts. Unless otherwise specified in this Agreement, all Fees and other amounts paid by Customer under this Agreement are non-refundable. All dollar amounts referred to in this Agreement are in United States dollars.

4.2 Taxes.  The Fees and other amounts payable by Customer are exclusive of any taxes, including sales, use, excise, value-added, personal property, export, import, and withholding taxes. Other than taxes on Instinct’s net income, Customer is responsible for all such taxes. If Customer claims exemption from any taxes under this Agreement, Customer must provide Instinct a valid tax exemption certificate.

5. CUSTOMER DATA

5.1 Ownership of Customer Data.  As between Customer and Instinct, Customer owns and retains all right, title, and interest in and to the Customer Data. Instinct acquires no ownership of Customer Data and, with respect to Customer Data, acts solely as a custodian and processor on Customer’s behalf.

4.2 Instinct’s Use of Customer Data.  Customer hereby grants Instinct a non-exclusive, worldwide, royalty-free and fully paid license to access, use, process, and disclose Customer Data: (a) to provide, maintain and support the Services in accordance with this Agreement; (b) to create Deidentified Data and Output; (c) as otherwise permitted by applicable law); or (d) as Customer otherwise authorizes in writing. Instinct will not use Customer Data for advertising or marketing purposes outside the operation of the Services without Customer’s consent and will not sell Customer Data.

5.3 No Model Training on Identifiable Customer Data.  Instinct will not use identifiable Customer Data to train, fine-tune, validate, or develop any machine-learning, neural-network, large-language-model, or other artificial-intelligence system, except with Customer’s prior written opt-in consent specific to such use.

5.4 Deidentified Data, Usage Data, and Feedback.  As between Customer and Instinct, Instinct owns all Deidentified Data, Usage Data, and Feedback and may use them for any purpose during and after the Term. If Customer or any Authorized User provides Feedback, Instinct is free to use such Feedback for any purpose, without restriction or obligation, and Customer, on its own behalf and on behalf of its Authorized Users, hereby assigns to Instinct all right, title, and interest in and to such Feedback. Deidentified Data, Usage Data, and Feedback do not constitute Customer Data or Customer’s Confidential Information.

5.5 Customer Responsibility for Data.  Customer is solely responsible for the accuracy, quality, integrity, and legality of the Customer Data. Customer represents and warrants that (a) it has all rights, consents, permissions, and authorizations necessary to provide the Customer Data to Instinct and to permit Instinct’s use of the Customer Data as contemplated under this Agreement (including any client or animal-owner authorizations required by applicable veterinary practice acts); and (b) Customer’s provision and use of Customer Data will not infringe or violate any third-party right or any applicable law. Instinct has no obligation to verify, audit, or monitor Customer Data. Any failure of Customer Data to comply with this Section 5.5 is a material breach by Customer.

6. AI FEATURES

6.1 AI Notice.  Customer acknowledges that certain Services include artificial-intelligence features (“AI Features”) that autonomously or partly autonomously process Inputs (including audio recordings) to generate Output. Instinct may use one or more third-party providers to power AI Features and may change such providers from time to time at Instinct’s sole discretion.

6.2 License to Output; No Reliance; Human Oversight.  Subject to the terms and conditions of this Agreement, Instinct grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right, during the Term to use the Output for Customer’s internal business purposes in connection with its veterinary practice operations. All Output is provided “as is”, “with all faults”, and without, and Instinct hereby disclaims, any warranty of any kind, express or implied. Customer acknowledges that Output may be inaccurate, incomplete, misleading, or unreliable and is not professional advice. Output is intended to assist, not replace, the professional judgment of qualified Authorized Users. Customer and its Authorized Users must independently review and verify Output before relying on it for any clinical, diagnostic, treatment, prescribing, or other professional decision. Instinct disclaims all liability arising from Customer’s use of or reliance on Output. Instinct makes no representation that Output is unique to Customer, and similar or identical Output may be generated for other users.

6.3 Recording Consent. Where an AI Feature records audio or audiovisual interactions, Customer is solely responsible for compliance with all applicable recording-consent, wiretap, privacy, and electronic-communications laws, including any laws requiring all-party consent. Customer represents and warrants to Instinct that, before creating or uploading any recording, Customer or the applicable Authorized User has provided and will provide all required notices to, and has obtained and will obtain all required consents from, all participants, has maintained and will maintain records of such consents, and has reviewed and will review each transcription for accuracy before relying on it. Customer will indemnify Instinct for any breach of this Section 6.3 pursuant to Section 12.1.

6.4 AI Laws and Consequential Decisions.  Customer acknowledges that laws governing the use of artificial-intelligence systems in consequential decision-making contexts may apply to Customer’s use of the Services and Output. Customer is solely responsible for determining which such laws apply and complying with them, including any obligation to provide notices to affected individuals, conduct impact assessments, or maintain human oversight and audit records. Customer shall not use Output as the sole or determinative basis for any consequential decision without meaningful human review by qualified personnel.

6.5 Restrictions.  In addition to Section 3, Customer shall not (a) use AI Features to generate unlawful, infringing, harmful, or misleading content; (b) permit any AI agent or autonomous process to access AI Features without Instinct’s prior written authorization; or (c) attempt to reverse engineer, extract, or reconstruct the architecture, weights, parameters, prompts, or training data of any model used in connection with the Services.

6.6 Pet-Owner Data.  To the extent an AI Feature captures information about an animal patient’s owner or other third party (“Pet-Owner Data”), Customer acknowledges that Customer is the controller (or equivalent role) with respect to such Pet-Owner Data and is responsible for providing required notices and obtaining required consents. Instinct acts as a service provider or processor on Customer’s behalf with respect to Pet-Owner Data, subject to the applicable provisions of the Instinct Privacy Policy, DPA (if applicable), and Section 9.

6.7 Recording Retention.  Unless otherwise specified in the applicable Service Order, Instinct will retain audio recordings for a period of ninety (90) days from creation, after which Instinct may delete such recordings. Transcriptions and other Output derived from recordings are stored as part of Customer’s account and are subject to Section 13.8 (Data Export and Deletion).

7. CLINICAL-USE DISCLAIMER

The Services and any Output are provided to assist, not replace, the professional judgment of qualified veterinary and pharmacy professionals. The Services and Output do not constitute veterinary, medical, pharmaceutical, or other professional advice, do not create a professional-client or care relationship between Instinct and any Authorized User or third party, and are not a substitute for the independent evaluation, diagnosis, treatment, or prescribing decision of a qualified professional. All use of the Services and reliance on any Output is at Customer’s own risk. Instinct does not represent that the Services or any Output are appropriate for any particular animal patient, clinical circumstance, or treatment plan, and Instinct disclaims all liability arising from Customer’s or any Authorized User’s use of the Services or reliance on any Output for any clinical, diagnostic, treatment, prescribing, or other professional decision. The Services are not medical devices and have not been evaluated or approved by the U.S. Food and Drug Administration or any other regulatory authority for use as a medical device.

8. INTELLECTUAL PROPERTY

8.1 Instinct IP.  Subject to the limited right expressly granted to Customer in Section 2.2, Instinct retains all right, title, and interest in and to the Instinct IP, including all Output, Deidentified Data, Feedback, Usage Data, and derivative works or improvements to any of the foregoing. No license, right, or interest in or to any Instinct IP is granted to Customer by implication, estoppel, or otherwise.

8.2 Customer IP.  As between Customer and Instinct, Customer retains all right, title, and interest in and to the Customer Data (in the form originally provided to Instinct) and to Customer’s Confidential Information.

8.3 Customer Marks.  Customer grants Instinct a non-exclusive, worldwide, royalty-free license, during the Term, to use Customer’s name, logo, and trademarks for the limited purpose of identifying Customer as a customer of Instinct in customer lists, on Instinct’s website, and in similar marketing materials. Use of Customer’s name, logo, and trademarks for any case study or press release requires Customer’s prior written consent.

9. CONFIDENTIALITY

9.1 Confidentiality Obligations.  Each Party (as the “Receiving Party”) shall use the other Party’s (the “Disclosing Party”) Confidential Information solely to exercise its rights and perform its obligations under this Agreement, shall not disclose Confidential Information to any third party except to its employees, contractors, advisors, and Affiliates who have a need to know and are bound by obligations of confidentiality at least as protective as those set forth herein, and shall protect Confidential Information using at least the same degree of care it uses to protect its own confidential information of similar nature, but in no event less than reasonable care. Customer Data is treated as Customer’s Confidential Information notwithstanding any general exclusion; Deidentified Data, Usage Data, and Feedback are not Customer’s Confidential Information.

9.2 Exclusions.  The obligations in Section 9.1 do not apply to information that the Receiving Party can demonstrate (a) was known to it without obligation of confidentiality before disclosure by the Disclosing Party; (b) is or becomes publicly available through no fault of the Receiving Party; (c) was received from a third party without obligation of confidentiality; or (d) was independently developed without reference to the Disclosing Party’s Confidential Information.

9.3 Compelled Disclosure and Equitable Relief.  If the Receiving Party is required by law to disclose Confidential Information, it shall, to the extent legally permitted, promptly notify the Disclosing Party before disclosure and cooperate in efforts to obtain a protective order. Each Party acknowledges that unauthorized disclosure of Confidential Information may cause irreparable harm and that the Disclosing Party is entitled to seek injunctive relief without posting bond. Confidentiality obligations survive for five (5) years after termination; trade-secret obligations survive for so long as the information constitutes a trade secret.

10. WARRANTIES AND DISCLAIMERS

10.1 Mutual Warranties.  Each Party represents and warrants that (a) it has full power and authority to enter into this Agreement; (b) this Agreement is its valid and binding obligation; and (c) its performance will not violate any other agreement or law. Instinct further represents and warrants that it has authority to enter into this Agreement on behalf of any Affiliate providing Services hereunder.

10.2 Service Warranty.  Instinct warrants that, during the Term, the Services will perform materially in accordance with the Documentation. As Customer’s sole and exclusive remedy for any breach of this Section 10.2, Instinct shall, at its option, (a) use commercially reasonable efforts to cure the non-conformity, (b) provide a functional equivalent, or (c) if neither is commercially feasible, terminate the affected Service Order and refund the prorated portion of any prepaid Fees for the affected Services. This warranty does not apply to non-conformity caused by Customer’s failure to comply with this Agreement or the Documentation, modifications not made by Instinct, or combination with any product or service not approved by Instinct.

10.3 Disclaimer.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 10, AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND OUTPUT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND INSTINCT MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, UNINTERRUPTED OR ERROR-FREE OPERATION, AND SECURITY. INSTINCT DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR BE FREE FROM DEFECTS OR ERRORS. INSTINCT DISCLAIMS ALL WARRANTIES AS TO ANY THIRD-PARTY SOFTWARE, SERVICES, OR AI MODELS USED TO PROVIDE THE SERVICES. INSTINCT MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY OUTPUT (INCLUDING TRANSCRIPTIONS).

11. LIMITATION OF LIABILITY

11.1 Aggregate Cap.

TO THE FULLEST EXTENT PERMITTED BY LAW, INSTINCT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY, INDEMNIFICATION, OR ANY OTHER THEORY, SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO INSTINCT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.

11.2 Consequential Damages Waiver.

EXCEPT WITH RESPECT TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12.1, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOST DATA, LOSS OF GOODWILL, OR COST OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.3 Allocation of Risk.  The limitations and exclusions in this Section 11 reflect a deliberate allocation of risk between the Parties given the Fees payable and the nature of the Services, form an essential basis of the bargain, and apply notwithstanding the failure of any exclusive or limited remedy of its essential purpose.

12. INDEMNIFICATION

12.1 By Customer.  Customer shall defend, indemnify, and hold harmless Instinct, its Affiliates, and their respective officers, directors, employees, and agents (the “Instinct Parties”) from and against any losses, liabilities, damages, and reasonable attorneys’ fees arising out of any third-party claim arising from (a) Customer’s or any Authorized User’s breach of this Agreement, including without limitation breach of Section 3 (Acceptable Use) or Section 6.3 (Recording Consent); (b) Customer’s or any Authorized User’s violation of applicable law, including recording-consent, wiretap, or AI-specific laws; (c) any allegation that the Customer Data or any Input infringes or violates any third-party intellectual property right, right of privacy, or right of publicity; (d) Customer’s or any Authorized User’s veterinary care, prescribing, or clinical decisions, including the use or reliance on any Output; and (e) any acts or omissions of Customer’s Authorized Users or Affiliates related to the Services.

12.2 By Instinct.  Subject to Section 11.1, Instinct shall defend Customer, its Affiliates, and their respective officers, directors, employees, and agents from and against any third-party claim that (a) alleges Customer’s authorized use of the Services in accordance with this Agreement infringes any United States copyright, registered trademark, trade secret, or issued United States patent (the “IP Indemnity”); (b) results from Instinct’s failure to meet its security obligations under Section 15 or the DPA (if applicable), to the extent such failure causes an unauthorized disclosure of Customer Data; or (c) arises from Instinct’s gross negligence or willful misconduct, and shall indemnify and hold harmless Customer against any losses, liabilities, damages, and reasonable attorneys’ fees finally awarded by a court of competent jurisdiction or agreed in settlement for such claim. The IP Indemnity does not apply to claims arising or resulting from Customer Data, Customer’s Inputs, unauthorized modification, combination with non-Instinct products, use of the Services in violation of this Agreement, or any Output.

12.3 IP Alternative Remedies.  If any claim subject to the IP Indemnity is made, Instinct may, at its option, (a) procure the right for Customer to continue using the affected Services; (b) modify the affected Services to be non-infringing; (c) replace the affected Services with substantially equivalent alternatives; or (d) terminate the affected Services and refund the prepaid, unused portion of Fees for the affected Services. The remedies in this Section 12.3 and the IP Indemnity are Customer’s sole and exclusive remedy for IP infringement claims.

12.4 Procedures.  The indemnified party shall promptly notify the indemnifying party in writing of the claim, grant the indemnifying party sole control over the defense and settlement (provided that no settlement imposing a non-monetary obligation or admission of fault on the indemnified party may be made without the indemnified party’s consent), and reasonably cooperate in the investigation and defense of the claim at the indemnifying party’s expense. The indemnified party may participate in the defense at its own expense.

13. TERM AND TERMINATION

13.1 Term.  This Agreement commences on the Effective Date and continues for the initial term specified in the applicable Service Order (the “Initial Term”), after which this Agreement automatically renews for successive twelve (12) month periods (each a “Renewal Term”) unless either Party provides written notice of non-renewal at least sixty (60) days before the end of the then-current term. The Initial Term and any Renewal Terms are collectively the “Term.”

13.2 Renewal Pricing.  Upon each Renewal Term, Instinct may increase Fees by up to five percent (5%) with at least sixty (60) days’ prior written notice, unless otherwise stated in the applicable Service Order.

13.3 Termination for Cause.  Either Party may terminate this Agreement (or the affected Service Order) upon written notice if the other Party materially breaches this Agreement and fails to cure the breach within sixty (60) days after written notice; provided that Instinct may terminate on ten (10) days’ notice for Customer’s failure to cure a payment default. Either Party may terminate immediately upon the other Party’s bankruptcy, insolvency, or cessation of business.

13.4 Termination for Convenience.  Either Party may terminate this Agreement for convenience upon ninety (90) days’ prior written notice. If Instinct is the party initiating termination under this section, Customer is entitled to a refund of the prepaid but unearned portion of Fees for the period after the effective date of termination or Transition Period (if any), and transition assistance pursuant to Section 13.7. Except as expressly set forth herein, Service Orders are non-cancellable before the end of the Initial Term or Renewal Term. Except as expressly set forth herein, Fees are non-refundable.

13.5 Suspension.  Instinct may suspend Customer’s or any Authorized User’s access to the Services (in whole or in part), on such notice as is reasonable in the circumstances, for (a) any breach of Section 3 (Acceptable Use) or other material breach that Instinct reasonably determines poses a security or legal-liability risk; (b) failure to cure a payment default after ten (10) days’ notice; (c) compliance with applicable law or governmental request; or (d) a third-party infringement claim. Instinct will use commercially reasonable efforts to limit the scope and duration of any suspension.

13.6 Effect of Termination.  Upon termination or expiration and following any Transition Period (if any), all licenses granted to Customer terminate and Customer shall cease use of the Services. Customer remains liable for all Fees accrued through the effective date of termination or Transition Period (if any). If Instinct terminates for Customer’s uncured breach, all Fees payable for the remainder of the then-current term become immediately due and payable. 

13.7 Transition Assistance.  In the event of (a) Instinct’s termination for convenience, or (b) Customer’s termination for Instinct’s uncured material breach, Instinct will provide Customer, upon Customer’s request, with continued access to the Services for up to three (3) months following the effective date of termination or expiration (the “Transition Period”), at the then-current Fees, and continued Customer Data export functionality at no additional charge. Transition assistance is conditioned on Customer being current on all undisputed Fees.

13.8 Data Export and Deletion.  Instinct may retain the Customer Data for ninety (90) days following termination or expiration, after which Instinct shall delete the Customer Data, unless retention is required by applicable law. This Section 13.8 does not apply to Deidentified Data, Usage Data, or Feedback, which Instinct may retain and use in accordance with this Agreement.

13.9 Survival.  Sections 1, 4, 5, 7, 8, 9, 10.3, 11, 12, 13.7, 13.8, this Section 13.9, 15 (with respect to data retained or processed post-termination), 17, and 18 survive termination.

14. SUPPORT

14.1 Support.  Instinct shall provide reasonable support during the Term in accordance with the support tier specified in the applicable Service Order.

15. PRIVACY, SECURITY, AND DATA PROTECTION

15.1 Data Processing Agreement.  Where Customer Data includes personal data subject to the EU GDPR, UK GDPR, Swiss FADP, or other applicable data-protection law that requires a data-processing agreement, the DPA is incorporated by reference into this Agreement.

15.2 No Protected Health Information.  The Services are designed for the operation of veterinary practices. The Services are not suitable or intended for processing protected health information (“PHI”) as defined by the Health Insurance Portability and Accountability Act of 1996, and Instinct does not enter into Business Associate Agreements. Customer shall not upload, submit, or otherwise transmit any PHI to Instinct or the Services, and will defend, indemnify, and hold Instinct harmless for any breach of this Section 15.2.

15.3 Customer Compliance.  Customer is responsible, as the data controller (or equivalent role), for compliance with all applicable data-privacy, data-protection, and electronic-communications laws applicable to Customer’s operations and its use of the Services.

15.4 Security.  Instinct shall maintain reasonable administrative, technical, and physical safeguards, including, as appropriate, encryption of Customer Data in transit and at rest, role-based access controls, audit logging of access to and modification of Customer Data, and regular security assessments. Upon request, Instinct will provide Customer with a summary of its SOC 2 Type II (or equivalent) report, which shall be treated as Confidential Information.

15.5 Security Incident Notification.  Instinct shall notify Customer of any confirmed unauthorized access to Customer Data in Instinct’s possession or control without undue delay, and in any event no later than seventy-two (72) hours after Instinct’s confirmation, and shall provide reasonable information about the nature of the incident and Instinct’s remediation steps. Such notification is not an admission of fault or liability.

16. INSURANCE

16.1 Minimum Coverage.  Throughout the Term, Instinct shall maintain the following insurance with carriers rated A-VII or better by A.M. Best: (a) commercial general liability insurance with limits of not less than two million dollars ($2,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate, including contractual liability and products/completed-operations coverage (which limits may be met in combination with an umbrella excess liability policy); (b) technology errors and omissions / professional liability insurance of not less than three million dollars ($3,000,000) per claim and three million dollars ($3,000,000) in the aggregate, inclusive of legal defense costs, for liability arising out of any negligent act, error, mistake, or omission in the performance of or failure to perform the Services (including coverage for cyber-security response and investigation costs, data restoration, litigation defense, and regulatory defense costs and penalties related to data loss and data breaches); and (c) network security and privacy liability insurance of not less than three million dollars ($3,000,000) per claim and three million dollars ($3,000,000) in the aggregate for liability arising from unauthorized access, failure of security, breach-of-privacy perils, wrongful disclosure of information, or transmission of malware. Instinct shall provide a certificate of insurance evidencing the foregoing upon Customer’s reasonable written request, not more than once per calendar year.

16.2 Customer Insurance.  Customer shall maintain insurance reasonable and customary for veterinary practices of its size and scope, including general liability, professional liability (veterinary malpractice), and cyber liability.

17. GENERAL PROVISIONS

17.1 Force Majeure.  Neither Party is liable for any failure or delay in performance (other than Customer’s payment obligations) caused by events beyond its reasonable control, including acts of God, war, terrorism, governmental action, pandemics, labor disputes, or failures of the public internet or cloud-infrastructure providers. If a force-majeure event continues for more than thirty (30) consecutive days, either Party may terminate this Agreement upon written notice to the other Party.

17.2 Assignment.  Instinct may assign this Agreement, in whole or in part, to any Affiliate or successor in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets, without Customer’s consent and upon written notice. Customer shall not assign this Agreement (or any rights or obligations under this Agreement), whether by operation of law, change of control (including any merger, consolidation, sale of substantially all assets, or transfer of more than fifty percent (50%) of the voting securities of Customer), or otherwise, without Instinct’s prior written consent, such consent not to be unreasonably withheld in the case of a transfer to an Affiliate.

17.3 Amendments.  Instinct may modify this Agreement from time to time by written notice (via email to Customer’s primary contact, in-product notification, or posting on Instinct’s website). Any such modification is effective at the commencement of the next Renewal Term or earlier upon Customer’s written acceptance. Customer’s sole remedy for any modification that Customer reasonably determines materially adversely affects Customer is to provide notice of non-renewal pursuant to Section 13.1.

17.4 Notices.  Notices under this Agreement directed to Instinct shall be in writing and delivered by mail to 54 E. Oakland Ave., Doylestown, PA 18901, or via email to legal@instinctdev.wpenginepowered.com. Notices under this Agreement directed to Customer shall be in writing or via email to Customer’s primary address or contact email on file for Customer, hand delivery, or overnight courier. Email notices delivered before 5:00 p.m. recipient’s local time on a business day are deemed delivered the same business day.

17.5 Governing Law; Jurisdiction; Jury and Class Waivers.  This Agreement is governed by the laws of the State of Pennsylvania, without regard to conflict-of-laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Each Party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the State of Pennsylvania. EACH PARTY KNOWINGLY WAIVES ANY RIGHT TO TRIAL BY JURY AND ANY RIGHT TO PARTICIPATE IN ANY CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING. Notwithstanding the foregoing, either Party may seek injunctive relief in any court of competent jurisdiction to enforce the Party’s rights under Sections 3, 5, 6, 8, or 9, or Instinct’s collection of undisputed Fees.

17.6 Severability; Counterparts; Waiver; Independent Contractors.  If any provision of this Agreement is invalid, illegal, or unenforceable, it shall be modified to the minimum extent necessary to make it valid and enforceable, and the remaining provisions shall continue in effect. This Agreement may be executed in counterparts and by electronic signature. No failure or delay in exercising any right operates as a waiver. The Parties are independent contractors.

17.7 Entire Agreement; Order of Precedence.  This Agreement, together with each Service Order, each Addendum (including the Messaging Services Addendum and any Payments Addendum), and (where applicable) the DPA, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings. The terms and conditions of any purchase order or similar Customer instrument have no effect and are expressly rejected. In the event of conflict, the order of precedence is (i) the DPA (if applicable); (ii) the applicable Service Order; (iii) the applicable Addendum; and (iv) this Agreement. 

18. ADDENDA

18.1 Messaging Services.  Customer’s use of Instinct’s client-chat, SMS, or other electronic messaging services is governed by the Messaging Services Addendum attached hereto as Addendum A.

18.2 Instinct Payments.  Customer’s use of Instinct Payments is governed by the Instinct Payments Terms in Addendum B.

ADDENDUM A — MESSAGING SERVICES

This Addendum A is incorporated into and forms part of the Software Services Agreement (the “Agreement”) between Instinct Science, LLC (“Instinct”) and Customer. Capitalized terms not defined herein have the meanings set forth in the Agreement. This Addendum applies to Customer’s use of Instinct’s client chat, SMS, and other electronic messaging services (the “Messaging Services”). In the event of conflict with the body of the Agreement with respect to the Messaging Services, this Addendum controls.

1. Messaging Services. Customer consents to Instinct’s use of third-party platforms (including Twilio or other messaging providers) in connection with the Messaging Services. Customer agrees that Instinct has no responsibility or liability for such third-party platforms, unless caused solely by Instinct’s gross negligence or willful misconduct.
2. Compliance with Laws. Customer shall use the Messaging Services in compliance with all applicable laws, carrier requirements, and industry standards governing telecommunications and electronic messages, including without limitation the Telephone Consumer Protection Act of 1991 (“TCPA”), Canada’s Anti-Spam Legislation (“CASL”), the regulations of the Canadian Radio-television and Telecommunications Commission (“CRTC”), the Personal Information Protection and Electronic Documents Act (“PIPEDA”), and CTIA rules and regulations (collectively, “Messaging Rules and Regulations”). Customer is solely responsible for determining the laws applicable to its messaging use cases and complying with them.
3. Consent and Opt-Out. Customer shall not use the Messaging Services to communicate with any individual who has not provided express consent in the form required by applicable law. Customer is solely responsible for obtaining, documenting, and maintaining consents (including date- and time-stamped consent logs) and for honoring opt-out requests. Customer represents and warrants to Instinct that, by providing, uploading, or submitting any phone number, email, or other contact information to the Services or otherwise using the Messaging Services, it has provided all notices and obtained all consents required by Messaging Rules and Regulations.
4. Use Restrictions. Customer shall not use the Messaging Services (a) to send spam, abusive, or prohibited content; (b) for emergency communications; or (c) to communicate with any person who has not expressly consented to such communications. Customer is solely responsible for the content of any message.
5. Suspension. Instinct may suspend Customer’s use of the Messaging Services if Instinct reasonably determines that Customer’s use of the Messaging Services violates Messaging Rules and Regulations or that suspension is necessary to prevent harm.
6. Indemnification. Without limiting Customer’s indemnification obligations under Section 12.1 of the Agreement, Customer shall defend, indemnify, and hold harmless the Instinct Parties from any losses, liabilities, damages, claims, and reasonable attorneys’ fees arising out of (a) Customer’s use of the Messaging Services; or (b) Customer’s breach of Messaging Rules and Regulations.

ADDENDUM B — INSTINCT PAYMENTS TERMS

These Instinct Payments Terms apply to Customer’s use of Instinct Payments with Instinct EMR.

• Payments Services.

1. 1. 1. Instinct agrees to provide Customer access to Instinct Payments, an integrated payment processing feature within Instinct EMR. The service provides payment options to Customer for processing patient payments via credit and debit cards. Instinct uses a third-party provider to process payment transactions and handle cardholder data. Customer will comply with any merchant onboarding requirements provided by the third-party payment processor.

•  Payments Rates & Fees.

1. 1. 1. Customer agrees to the rate and fee schedule provided by Instinct. If the payment processor or any upstream providers increase fees due to changes outside of Instinct’s control, Instinct reserves the right to modify the fees with at least thirty (30) days’ written notice. Customer’s continued use of the Service after the effective date of the fee change constitutes acceptance of the new fees. The processing rate is eligible for annual account reviews. 

      2. Customer will take all reasonable steps to avoid chargebacks. In the event that a chargeback occurs, Customer will be charged a minimum fee of $25, plus any additional costs or fees imposed by the payment processor, banking institutions, or card processors. 

•  Activation and Implementation.

1. 1. 1. Customer agrees to actively participate in the payments onboarding process to ensure the timely implementation of Instinct Payments. If Customer is already using Instinct EMR and is using a payments provider other than Instinct Payments, Customer agrees to begin processing payments through Instinct Payments within sixty (60) days of the Effective Date of this agreement. If Customer is purchasing access to Instinct EMR for the first time, then Customer agrees to begin processing payments through Instinct Payments within three (3) days after the Scheduled Commencement Date for Instinct EMR.

• Customer Responsibilities.

1. 1. Customer is responsible for the following:

1. Ensuring that all payment transactions comply with PCI-DSS and card service requirements, including but not limited to secure handling of cardholder data, maintaining appropriate security measures, and training personnel on PCI compliance.
2. Completing any PCI-DSS attestations or documents required by Instinct, the payment processing partner, or card service providers.
3. Maintaining compliance with applicable laws and regulations regarding payment processing.​
4. Notifying Instinct of any relevant personnel changes related to account contacts. 
5. Responding to Instinct communication regarding any items necessary to support payment operations, including fraud alerts, hardware updates, and chargeback notifications.

• End User Responsibilities.

1. 1. 1. Customer’s users are solely responsible for maintaining the confidentiality of login credentials. Customer will ensure that each user agrees to keep login credentials confidential and secure, and ensure that users do not make login credentials available, directly or indirectly, to any unauthorized individual. Customer acknowledges and agrees that Customer will be liable and responsible for all transactions that result from access to the account services through authenticated user credentials or Customer’s users.

• Instinct Responsibilities.

1. 1. 1. Instinct will provide necessary support and training to assist with the implementation and ongoing use of Instinct Payments, including obtaining a merchant account through the payment processor. For any issues that cannot be resolved through standard support processes, Customer can email issues to instinctpayments@instinctdev.wpenginepowered.com. 

• Terminal Warranty and Repair.

1. 1. 1. All terminals purchased through Instinct Payments are enrolled in the payment processor’s Terminal Replacement Service, which provides ongoing coverage to Customer during the duration of this Agreement. For terminal replacement, Customers must contact Instinct via email at instinctpayments@instinctdev.wpenginepowered.com. Instinct will submit a replacement request to the payment processor on Customer’s behalf. The payment processor uses reasonable efforts to ship a replacement unit to Customer within one business day of the request.  The replacement unit will be of the same model and could be a refurbished device. Customer must return the defective device to the payment processor within two weeks of receiving the replacement, or Customer will be liable for the full replacement cost of the device.

      2. The Terminal Replacement Service only covers hardware defects and functional failures. Physical damage is excluded, including drops, liquid exposure, temperature extremes, tampering, improper charging, and damage from unauthorized accessories. Cords and accessories are not covered. If a defect is confirmed but falls outside the scope of the Terminal Replacement Service, Customer will be responsible for paying the full device purchase price.

• Termination.

1. 1. 1. Instinct may terminate Customer’s access to the Instinct Payments Service if Customer does not comply with all payment processor, card service provider, and regulatory requirements, including but not limited to compliance with PCI requirements and payment processing regulations. 

• Disclaimer.

1. 1. Instinct is a software provider, not a bank, credit union, payment processor, or financial institution. Transactions are processed through Instinct’s chosen payment and point of sale processor(s). By processing transactions through Instinct software, you authorize Instinct’s payment processor(s) to charge credit cards or other payment methods. Transactions processed through Instinct software may also be subject to the terms and conditions of the applicable payment vendor.