NITRO PET EXPRESS, INC.
PET CARE & TRANSPORTATION SERVICES AGREEMENT
_____________________ (“Client”) and NITRO PET EXPRESS, INC. (“Service Provider”) enter into this Service Agreement (“Agreement”) on this ____day of ____________(month), ________(year). The Client and Service Provider are sometimes collectively referred to herein as the "Parties" and individually as a "Party".
Client wishes to retain the services of the Service Provider, and the Service Provider agrees to provide Client services, in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
1. SERVICES. The Client hereby retains the Service Provider to perform the following services on behalf of the Client. During the term of this Agreement, the Service Provider agrees to perform such services as shall be mutually agreed upon by the Client and the Service Provider. Service Provider warrants that it is a dog and cat (“pets”) transportation business that provides its services to all forty-eight contiguous states and Alaska in the United States, as well as Canada. Service Provider agrees to provide the following services for Client: transport pets to and from destinations specified by Client; provide regular bathroom breaks to Client’s pets while in transit; provide food and water breaks to pets while in transit; provide Client with daily text and picture updates of their pets while in transit; and, provide personalized care of Client pets in a safe, professional, and friendly environment. Service Provider will determine the method, details, and means of performing said services. The Parties acknowledge and agree that during the term of the Agreement, the services rendered may be modified and/or expanded from time to time by the Parties. No changes to the services rendered will be authorized by Service Provider, and Service Provider shall have no obligation to perform any additional or modified Services, until a Change Order has been agreed upon and signed by an authorized representative of Service Provider.
2. INDEPENDENT CONTRACTORS. Client acknowledges and agrees that Service Provider may, at its sole discretion, use independent contractors to perform some or all of the services to be provided under this Agreement. In the event Service Provider utilizes independent contractors to perform any of the aforementioned services, Service Provider shall remain responsible to Client for performance under this Agreement.
3. NO EXCLUSIVITIY. Service Provider may represent, perform services for, and contract with other additional clients, persons, or companies as Service Provider, in its sole discretion, sees fit, provided those services do not pose a direct conflict of interest with the services performed for the Customer.
4. COMPLIANCE WITH LAWS. Client agrees, at Client’s own expense, to operate in full compliance with all governmental laws, regulations, and requirements applicable to the duties conducted hereunder.
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5. FEES. As full consideration for the provision of services rendered by Service Provider, Client shall pay Service Provider fees in the amount of $_________. Service Provider shall prepare and submit an invoice to the Client via mail or email covering the total amount owed for Fees and Expenses for services rendered as agreed upon in this Agreement. Client shall make payment in full at time of completed performance by Service Provider. Should Client make payment at a date later than ten (10) days after the date of full performance of services, Client agrees to pay Service Provider a late fee of ten (10) percent (%) of the total fee for services rendered, in addition to the original fee obligation. All costs for services rendered under this Agreement are non-refundable after performance is completed by Service Provider.
6. NON-REFUNDABLE DEPOSIT. Client agrees that any and all deposits made for services with the Service Provider under this Agreement are non-refundable.
7. WARRANTY OF SERVICES. The services to be performed hereunder by Service Provider include, but are not limited to, the aforementioned services. Service Provider does not warrant in any form the results or achievements of the services provided, or the resulting work product and deliverables. Service Provider warrants that services rendered will be performed by an independent contractor or other employee of Service Provider in a professional and workmanlike manner, and in accordance with generally accepted industry standards and practices. Service Provider shall comply with all statutes, ordinances, regulations and laws of all international, federal, state, county, municipal or local governments applicable to performing the services hereunder. The warranty hereto set forth is exclusive and is in lieu of all other warranties, express, implied, statutory, or otherwise with respect to the services, work product, or deliverables provided under this agreement, or as to the results which may be obtained therefrom. Service Provider disclaims all implied warranties, including but not limited to, the warranties of merchantability, fitness for a purpose, or against infringement. Service Provider shall not be liable for any services or work product or deliverables provided by third party vendors identified or referred to the Client by the Service Provider during the term of this Agreement. Client’s exclusive remedy for breach of this warranty is reperformance of the services by Service Provider, or if reperformance is not possible, refund of the amounts paid under this agreement for such non-conforming services.
8. CONFIDENTIAL INFORMATION. The Parties acknowledge that by reason of their relationship to the other hereunder, each may disclose or provide access (the "Disclosing Party") to the other Party (the "Receiving Party") certain Confidential Information. "Confidential Information" shall mean (i) information concerning the Parties' products, property, services, businesses, and operations including but not limited to: information relating to business plans, financial records, customers, suppliers, vendors, products, costs, sources, strategies, inventions, trade secrets, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, procedures, distribution methods, inventories, marketing strategies and interests, data, designs, drawings, work sheets, computer programs and systems and know-how or other intellectual property, of a Party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form; (ii) the terms of any agreement, including this Agreement, and the discussions, negotiations, and proposals related to any agreement; (iii) information acquired during any tours of or while present at a Party's facilities; and (iv) all other non-public
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information provided by the Disclosing Party hereunder. In no event shall Service Provider's use or disclosure of information regarding or relating to the development, improvement, or use of any of Service Provider's products be subject to any limitation or restriction. All Confidential Information shall remain the property of the Disclosing Party.
9. USE OF CONFIDENTIAL INFORMATION; STANDARD OF CARE. The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees, independent contractors, consultants, and representatives who have a need to know such Confidential Information to fulfill the business affairs and transactions between the Parties contemplated by this Agreement. Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Receiving Party shall only use the Confidential Information in furtherance of its performance of its obligations under this Agreement, and agrees not to use the Disclosing Party's Confidential Information for any other purpose or for the benefit of any third party, without the prior written approval of the Disclosing Party. The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information.
10. USE OF CONFIDENTIAL INFORMATION EXCEPTIONS. Confidential Information does not include information that: (i) was lawfully in Receiving Party's possession before receipt from Disclosing Party; (ii) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party; (iii) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; (iv) Receiving Party receives from a third party free to make such a disclosure without, to the best of Receiving Party's knowledge, breach of any legal or contractual obligation, or (v) is disclosed by Receiving Party with Disclosing Party's prior written approval.
11. REQURIED DISCLOSURES. If the Receiving Party is confronted with legal action to disclose Confidential Information received under this Agreement, the Receiving Party shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and Receiving Party shall reasonably assist disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed.
12. UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION; EQUITABLE RELIEF. In the event the Receiving Party discovers that any Confidential Information has been used, disseminated or accessed in violation of this Agreement, it will immediately notify the Disclosing Party, take all commercially reasonable actions available to minimize the impact of the use, dissemination or publication, and take all necessary steps to prevent any further breach of this Agreement. The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event the Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this Agreement, in addition to all other remedies available in law or at equity.
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13. RETURN OF CONFIDENTIAL INFORMATION; SURVIVAL. Receiving Party shall promptly return or, at Disclosing Party's option, certify destruction of all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of this Agreement. Notwithstanding any expiration or termination of this Agreement, Receiving Party's obligations to protect the Confidential Information pursuant to this Section will survive for two (2) years after the expiration or earlier termination of this Agreement.
14. HEALTH CONDITIONS OF PET(S). Client agrees to disclose all known health conditions of their pet(s) at or before the time of the execution of this Agreement. Client agrees to release Service Provider from all liability resulting from any harm, injury, or death that occurs to Client’s pet(s) because of a known or unknown health condition, whether or not pet(s) are in the possession of Service Provider or Service Provider’s authorized agents. Service Provider agrees and warrants that Service Provider or Service Provider’s authorized agents will administer all medications for pet(s) in Service Provider’s care, as necessary, and after proper notice from Client as to the necessity of administering such medications. Client agrees that Service Provider will not be responsible or liable for administering medications to pet(s), or any resulting complications therefrom. Furthermore, Client understands that Service Provider will not administer injected medications to pet(s) under any circumstances, and is neither responsible nor liable for any pet health outcomes resulting from any medical condition requiring injected medications while in the possession of Service Provider.
15. GENERAL RELEASE OF LIABILITY. Client agrees to release Service Provider from all legal and financial liability of any kind, which may arise from (but is not limited to): car accidents, third party negligence, natural disasters, acts of God, terrorism, military invasion, or all other damages or injuries sustained by Client or Client’s pet(s) while services are rendered by Service Provider or Service Provider’s authorized agents under this Agreement.
16. ESTIMATED DATES OF DELIVERY. Client agrees and understands that delivery dates for rendered services are merely estimates and are subject to change based on a variety of factors. Client agrees to release Service Provider of all liability for delays in delivery of pet(s), or for changes in delivery dates that occur without any prior notice.
17. INDEMNIFICATION. Each Party (the "Indemnifying Party") agrees to indemnify, defend and hold the other Party and its affiliates and their respective officers, directors, employees and agents harmless from and against all third-party claims, losses, liabilities, damages, expenses and costs, including attorney's fees and court costs, arising out of the Indemnifying Party's (i) negligence (gross or otherwise) or willful misconduct or (ii) its material breach of any of the terms of this Agreement. The Indemnifying Party's liability under this Section shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents, contributed to such liability. The Party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement of the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.
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18. LIMITATION OF LIABILITY. Except for the Parties’ confidentiality obligations and Indemnification obligations as set forth herein, in no event shall either party be liable under this Agreement to the other Party for any incidental, consequential, indirect, statutory, special, exemplary, or punitive damages, including but not limited to: lost profits, loss of use, loss of time, inconvenience, lost business opportunities, damage to good will or reputation, and costs of cover, regardless of whether such liability is based on breach of contract, tort, strict liability, or otherwise, and even if advised of the possibility of such damages or such damages could have been reasonably foreseen. Subject to the Client’s obligation to pay the fees to the Service Provider, each Party’s entire aggregate liability for any claims relating to the services or thisAgreement shall not exceed the fees paid or payable by the Client to the Service Provider under this Agreement in the twelve (12) month period immediately preceding the events giving rise to such liability. This section shall survive the termination of this Agreement. No action shall be brought for any claim relating to or arising out of this Agreement more than one (1) year after the accrual of such cause of action, except for money due on an open account.
19. COOPERATION OF CLIENT. Client agrees to comply with all reasonable requests of Service Provider and shall provide Service Provider's personnel with access to all documents and facilities as may be reasonably necessary for the performance of the Services under this Agreement.
20. NON-SOLICITATION. Client agrees that during the term of this Agreement and for one (1) year thereafter, Client will not, directly or indirectly, solicit or induce any Service Provider employee that has interacted with Client or has been involved, directly or indirectly, in the performance, review or acceptance of the Services, to consider or accept employment with Client.
21. TERM. This Agreement will commence as of the Effective Date and will terminate on the earlier of one (1) year, or upon completion of the agreed upon services, unless earlier terminated in accordance with the provisions of this Agreement.
22. TERMINATION. Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment, or obligation under this Agreement that remains uncured: (i) in the event of a monetary breach, ten (10) calendar days following written notice thereof; and (ii) in the event of a non-monetary breach after thirty (30) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party. Either Party may terminate this Agreement immediately at its option upon written notice if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within ninety (90) calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this
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Agreement pursuant to 11 U.S.C. § 365. Service Provider may terminate this Agreement at any time, with or without cause, by giving thirty (30) days prior written notice.
23. OBLIGATIONS UPON TERMINATION. Termination of this Agreement for any reason shall not discharge either Party's liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Client shall pay Service Provider for all Services rendered prior to the effective date of termination. Upon termination, each Party shall return the other Party's Confidential Information that is in its possession at the time of termination. Upon the termination of the Agreement, the Customer shall promptly return to Service Provider any equipment, materials or other property of the Service Provider which are in Customer's possession or control.
24. RELATIONSHIP OF THE PARTIES. The relationship of the Parties hereto is that of independent contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party's employees or agents. Each of the Parties is an independent contractor and neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other Party, or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
25. FORCE MAJEURE. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, pandemics, epidemics, local disease outbreaks, public health emergencies, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of this Agreement, for so long as such force majeure event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within five (5) business days of its occurrence.
26. GOVERNING LAW AND VENUE. This Agreement is to be deemed as having been executed in the State of Oregon; and is to be interpreted, construed, and governed in accordance with the laws of the State of Oregon.
27. ATTORNEY’S FEES. If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney's fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
28. COLLECTION EXPENSES. If Service Provider incurs any costs, expenses, or fees, including reasonable attorney's fees and professional collection services fees, in connection with
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the collection or payment of any amounts due it under this Agreement, Client agrees to reimburse Service Provider for all such costs, expenses, and fees.
29. ASSIGNMENT. The Service Provider may subcontract its obligations and rights to a third- party. There are no third-party beneficiaries to this Agreement contemplated at the time of execution.
30. SEVERABILITY. If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
31. HEADINGS; CONSTRUCTION. The headings and captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. This Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
32. SURVIVAL. Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.
33. RIGHTS CUMULATIVE. The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
34. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page.
35. WAIVER. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
36. ENTIRE AGREEMENT; MODIFICATION. This Agreement, and any exhibits attached hereto, is the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the Parties, whether written, oral, electronic or otherwise. Each Party acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not contained in this Agreement, and that no other agreement, statement, or promise not contained in this Agreement will be valid or binding. No change, modification, amendment, or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties.
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37. SIGNATURES. In witness whereof, the Parties hereto have executed this Services Agreement on the date set forth below. The signatures of the authorized representatives of the respective parties to this Agreement following this paragraph constitute execution of this Agreement between them.
____________________________________________________(signature) Client, __________________________ (printed name)
____________________________________________________(signature) Service Provider, Nitro Pet Express, Inc.. or Authorized Representative
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