READ THE FOLLOWING AGREEMENT AND DISCLAIMERS IN THIS AGREEMENT CAREFULLY.
This Subscriber Agreement (“Agreement” or “Subscriber Agreement”), along with the documents referenced herein, governs your access to and use of and the VetCompanion® website and the VetCompanion® database and any content or information available thereon (collectively, the “VetCompanion Site” or “Site”), which is provided by VetCompanion, LLC (“VetCompanion”, “We”, or “Us”). “Subscriber,” “You” or “Your” refers to the person accessing or using the Site.
1.1 Subscribed Products. VetCompanion hereby grants Subscriber a non-exclusive, non-transferable, limited license, as updated or modified from time to time, to access and use the VetCompanion Site subject to the terms and conditions of this agreement.
1.2 Affiliate. An “Affiliate” means an entity that controls, is controlled by, or under common control with, a party.
2. Subscriber’s Responsibilities.
3. Confidential Information. “Confidential Information” means information provided by a party to the other party that is designated as confidential or reasonably should be considered confidential, excluding information that becomes public through no fault of the receiving party. Each party will use reasonable efforts to prevent the disclosure of the other party’s Confidential Information that are at least as strong as those it uses to protect its own confidential information, and will include disclosing confidential information only as required by law or under an obligation of confidentiality and only on a need-to-know basis.
4. Intellectual Property Rights and Ownership. The parties acknowledge that this Agreement does not transfer any right, title or interest in any intellectual property right to the other, except for Subscriber’s ability to access and use information found on the VetCompanion Site as expressly set forth in this Agreement. Subscribers are not obligated to provide VetCompanion or its Affiliates with any suggestions, enhancement requests, recommendations or other feedback about the services or otherwise. If, however, Subscriber provides this type of feedback to VetCompanion, VetCompanion may use and modify this feedback without any restriction or payment.<>/p>
5. Term and Termination. This Agreement is effective on the date that payment is received from the Subscriber and remains in effect until terminated. Either party may terminate this Agreement or an applicable Order Form if the other party materially breaches this Agreement and fails to cure the breach within 30 days after receiving notice of the breach. Moreover, VetCompanion may immediately suspend Subscriber’s access to and use of the services if Subscriber is in breach of Section 2 of this Agreement, provided that the suspension will continue only for as long as reasonably necessary for Subscriber to remedy the breach. If Subscriber terminates this Agreement or an applicable Order Form due to VetCompanion’s breach, VetCompanion will refund a pro-rata share of pre-paid fees. Upon termination of this Agreement or an Order Form, Subscriber will be notified that their access to the services has terminated, and VetCompanion may withhold, remove or discard any content, data, or other information that the Subscriber posts or uploads into VetCompanion’s system while using the services. VetCompanion will delete Subscriber Uploaded Data. VetCompanion is not obligated to store, maintain or provide a copy of any content, data or other information that Subscriber made available or provided when using the services. Sections 2 through 10 survive termination of this Agreement.
5.1 Subscription. As a VetCompanion Subscriber, you will be billed for a subscription in accordance with VetCompanion’s subscription fee. If a Subscribers subscribes to VetCompanion and pays a subscription fee of $299 in full by January 29, 2016, the Subscriber will be offered this rate each year when the Subscriber renews, for as long as the Subscriber remains a continuously enrolled subscriber. Any Subscriber that subscribes to the VetCompanion service after January 29, 2016 or any Subscriber that does not pay the VetCompanion subscription fee in full by January 29, 2016 will be subjected to an annual rate of $398 and any increases in price that may occur in the future.
5.2 Limited Refund. VetCompanion agrees to provide Subscriber a full refund if Subscriber cancels their VetCompanion subscription within sixty (60) days of initial purchase. If the Subscriber is unsatisfied with the VetCompanion service for any reason, the Subscriber may cancel their subscription in writing within 60 days of first purchase and receive a full refund. Any requests for refunds after the 60 day period from the first purchase date will not be processed. In the event VetCompanion issues a refund to Subscriber, said refund will be issued in US Dollars.
5.3 Renewal. The Subscribers subscription to VetCompanion will be automatically renewed every year, unless VetCompanion is notified in writing. The VetCompanion Subscriber will be notified of upcoming renewal fees and will have a thirty (30) day period post the renewal date to contact VetCompanion to cancel their VetCompanion subscription for a full refund. Until the Subscriber terminates their membership, the Subscriber authorizes VetCompanion or PayPal® to charge the Subscriber’s credit card (or other approved facility or mechanism) for the ongoing subscription fee.
5.4 Change in Billing Information. Please inform PayPal® of any of the following changes in your credit card or debit account: Change in home or billing address or other contact information; card loss or theft or unauthorized usage of the card; or apparent breach of security of username or password, such that unauthorized access to the VetCompanion service via the card is possible.
6. EXPRESS OR IMPLIED WARRANTY. THE SERVICES ARE PROVIDED “AS IS”. VETCOMPANION MAKES NO REPRESENTATION OR WARRANTY REGARDING THE SERVICES, INCLUDING ANY REPRESENTATION THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, VETCOMPANION DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Third-Party Indemnity.
7.1 Indemnification. VetCompanion will defend and indemnify Subscriber, its Affiliates, and their respective directors, officers and employees from and against all third party claims to the extent resulting from or alleged to have resulted from (a) the services’ infringement of a third party’s intellectual property right or (b) VetCompanion’s breach of this Agreement. Subscriber will defend and indemnify VetCompanion, its Affiliates, and their respective directors, officers and employees from and against all third party claims to the extent resulting from or alleged to have resulted from (a) the infringement of a third party’s intellectual property right by content, data or other information posted or uploaded into VetCompanion’s system by Subscriber, including Subscriber Uploaded Data (b) unauthorized use of the services, or (c) Subscriber’s breach of this Agreement.
7.2 Indemnification Procedures. Each party will notify the other in writing of any third party claim within ten (10) business days of receipt of the claim. The indemnifying party will control the defense of the claim. The indemnifying party will obtain the other party’s prior written approval of the indemnifying party’s choice of legal counsel and any settlement or compromise of a claim. The indemnified party will not unreasonably withhold or delay its approval of the indemnifying party’s selection of counsel or of the request for settlement or compromise. The indemnified party will assist and cooperate in the defense as reasonably requested by the indemnifying party and at the indemnifying party’s expense. If the indemnifying party fails to notify the indemnified party of indemnifying party’s intent to take any action within ten (10) business days after receipt of a notice of a claim, or to proceed in good faith with the prompt resolution of the claim, the indemnified party, with prior written notice to the indemnifying party and without waiving any rights to indemnification, may defend or settle the claim without the indemnifying party’s prior written consent. In this event, the indemnifying party will reimburse the indemnified party on demand for all damages incurred by the indemnified party in defending or settling the claim, including legal fees and costs.
8. Limitation of Liability. Except with respect to a party’s confidentiality or indemnification obligations, and excluding a party’s violation of the other’s intellectual property rights, to the fullest extent permitted by law, neither party, including Affiliates, will be liable to the other in connection with this Agreement for (a) lost profits or lost business opportunities, or any incidental, consequential, special or punitive damages, or (b) an amount that exceeds the total fees payable to VetCompanion during the 12-month period before the event giving rise to the liability. VetCompanion will not be liable for Subscriber’s lost data or any unauthorized third party access to Subscriber’s content, data, programs, information, network, or systems. Nothing in this Agreement limits either party’s liability for gross negligence or intentional misconduct, or for death or personal injury.
9. Dispute Resolution. The parties will attempt to resolve any dispute related to this Agreement through good faith, informal negotiation. If initial negotiation does not resolve the dispute, each party will escalate the dispute to the executive sponsor of this Agreement to attempt to resolve the dispute. If the parties are unable to resolve the dispute through negotiation, the parties will select a mutually agreed mediator in a mutually agreed location to attempt to resolve the dispute. This Agreement is to be governed by the laws of the State of New York, and if any action or proceeding related to this Agreement must be brought in a federal court in the Southern District of New York. Each party irrevocably submits to the jurisdiction and venue of the applicable courts. The prevailing party in any litigation may seek to recover its legal fees and costs. Any breach of confidentiality obligations in this Agreement, or any unauthorized use of the services or a party’s intellectual property by the other, may cause irreparable harm.
10. Miscellaneous. Except as expressly stated in this Agreement, the parties will provide notices under this Agreement in writing and will deliver them by personal delivery or commercial overnight courier to the address of the other party set forth on the Order Form. Notices are effective on the date of delivery as indicated in the records of the courier. This Agreement does not create a partnership, agency relationship, or joint venture between the parties. Any assignment of this Agreement by Subscriber in whole or in part without VetCompanion’s prior written consent will be null and void, except an assignment to a successor that is not a competitor of VetCompanion’s made in connection with a merger or sale of all or substantially all of Subscriber’s assets or stock or to an Affiliate. Subscriber is responsible for any agents and contractors it uses in connection with the services, including compliance with this Agreement, and will notify VetCompanion in writing of agencies that it uses in connection with the services. If this Agreement is translated into a language other than English, the translation is for convenience only, and the English language version will govern. VetCompanion may monitor Subscriber’s use of the services to ensure compliance with this Agreement, and may conduct a reasonable audit of Subscriber, including Affiliates, if VetCompanion reasonably believes that Subscriber is in breach of this Agreement. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to affect the parties’ intention and the remaining provisions will not be affected. The parties may amend this Agreement only in a written amendment signed by both parties, except for the User Agreement, which may be modified in accordance with its terms.