EMBARK VETERINARY, INC.
TERMS OF SERVICE
PLEASE REVIEW THESE TERMS CAREFULLY BEFORE USING OUR SERVICES, AS THE TERMS MAY HAVE CHANGED SINCE YOUR LAST VISIT. IF YOU ARE VIEWING THIS ON YOUR MOBILE DEVICE, YOU CAN ALSO VIEW THESE TERMS VIA A WEB BROWSER AT embarkvet.com/tos. IF YOU DO NOT AGREE TO THESE TERMS, THEN DO NOT USE OUR SERVICES, INCLUDING OUR SITE, SURVEYS, TOOLS, PROGRAMS, OR APP. BY USING OUR SERVICES, YOU REPRESENT TO US THAT YOU ARE AT LEAST 18 YEARS OLD AND HEREBY INDICATE YOUR UNCONDITIONAL ACCEPTANCE OF THESE TERMS.
We reserve the right to revise these Terms in our sole discretion at any time and without prior notice to you other than by posting the revised Terms on our Site. Revisions to the Terms are effective upon posting. The Terms will be identified as of the most recent date of revision. Your continued use of our Site after a revised version of these Terms has been posted on our Site constitutes your binding acceptance of the revised Terms from and after the date of such revision.
If you wish to use the Site on behalf of a company, entity or organization (each, a ‘Subscribing Entity’), then you represent and warrant that you: (a) have the authority to bind such Subscribing Entity to these Terms and (b) agree to be bound by these Terms on behalf of such Subscribing Entity.
THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND EMBARK VETERINARY, INC. ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS (SEE SECTION 23 ‘AGREEMENT TO ARBITRATE’).
‘Aggregated Genetic and Reported Information’: Genetic and Reported Information that has been combined with that of other users’ pets and analyzed or evaluated as a whole, such that no specific pet may be reasonably identified.
‘Apps’: Any downloadable applications we make available to you.
‘Embark’, ‘we’, ‘us’ or ‘our’: Embark Veterinary, Inc.
‘Genetic Information’: Information regarding your pet’s genotype (i.e., collection of genes) and epigenetic information obtained through processing and analysis of your pet’s saliva, semen, skin cells, hair or blood by us or our contractors, successors and assignees.
‘Genotyping and Methylation Services’ means our service of collecting, processing, reviewing, and reporting Genetic Information, including all Embark Services.
‘Personal Information’: Information, such as name and address, that can be used to identify you, either alone or in combination with other information.
‘Reported Information’: Information about your pet that you enter into surveys, forms or features while signed into your account on our Site or Apps, including any veterinary information provided by you or your veterinary care or dog services provider(s).
‘Services’: Our products, software, services, Site, and/or Apps.
‘Site’: embarkvet.com and its subdomains.
‘Terms’: These Terms of Service, which are a legally binding agreement that governs your access to our Services.
“User Content”: Data, including pictures, descriptions, and information, that you upload, post, email, or otherwise transmit via the Service. User Content also includes your responses or reactions to content from Embark or from other users’.
‘you’ or ‘your’: You.
2. Our Services.
Genotyping and Methylation. If you purchase our ‘Genotyping and Methylation Services,’ we will send you a kit for collecting and sending to us a sample of your pet’s saliva. We will analyze the DNA in that sample to provide you with your pet’s Genetic Information, through our Site and/or Apps. The state of the art of the genetic research and technology that we use will change, and potentially improve, over time. If the state of the art improves, you may wish to obtain further Services from us in order to obtain a more complete understanding of your pet’s Genetic Information. No samples that you send to us will be returned to you.
Upon purchasing a test kit, your ability to redeem the kit for the purchased Genotyping and Methylation Services does not expire; however, the swabs contained within the test kits have a limited shelf life and all samples must be received by Embark for testing within 24 months following the date of purchase (the “Sample Expiration Date”). If the Sample Expiration Date has passed and you have not mailed your sample back to us, you may request a replacement test kit that will be sent to you for a nominal re-shipment fee (to cover our shipping and handling costs). Embark is not obligated to process samples or otherwise provide Genotyping and Methylation Services collected from samples received by us after the Sample Expiration Date or collected without the use of the provided Embark kit. Your sole remedy (and Embark’s sole obligation to you) in the event your sample is not received by us before the Sample Expiration Date is replacement of the test kit. If you do not request a replacement test kit or choose not to accept a replacement test kit, Embark shall have no further obligation to provide the Genotyping Services to you.
Site and Apps. Our Site and/or Apps provide you with the opportunity to create an account, provide your pet’s Reported Information, and review and analyze information relating to your pet’s Genetic Information. We do not endorse, warranty or guarantee the effectiveness of any specific course of action, resources, tests, veterinarians, drugs, biologics, medical devices or other products, procedures, opinions, or other information that may be mentioned on our Site or Apps. Such information is provided for informational purposes only, and for discussion with your veterinarian. You may also be provided the opportunity to provide records from your pet’s veterinarian and/or other pet service providers you use. Providing that information is optional and may or may not be used to enhance your experience, provide you additional services, and/or conduct research.
Research. Unless you elect not to participate by deselecting the appropriate option when establishing your account, we will use your pet’s Genetic Information and/or Reported Information to conduct research, as described in Section 11, to expand the understanding and practical application of genetic knowledge in veterinary care and dog wellness generally.
Contacting your veterinarian. If you choose to provide us with your primary veterinarian’s information, you are consenting to allowing us to contact your primary veterinarian with information about your pet’s results and we may use your Personal Information to identify your pet to your primary veterinarian. You may elect not to participate by deselecting the appropriate option when establishing your account as described in Section 10 of these Terms of Service.
Personalized Experiences. We will also use your pet’s Genetic Information and/or Reported Information to provide educational materials and/or product recommendations.
Acknowledgement to Receive Email and Push Notifications. By providing your applicable contact information to Embark (or other entities collecting the information on behalf of Embark), you agree to receive emails, text messages, and push notifications (if you use our Apps) from us regarding our Services. We may from time to time send you push notifications, text or email messages with information about your use of our Services. You may opt-out from receiving our newsletter by selecting to unsubscribe as may be provided in the applicable email or text correspondence.
Our Services are for research, informational, and educational use only. Any information you obtain from our Services is not designed to diagnose, prevent, or treat any condition, diseases or state of health. We encourage you to speak with a veterinarian regarding the meaning of your pet’s Genetic Information or any questions that arise from your use of our Services.
We may alter, suspend, or discontinue our Services in whole or in part, at any time and for any reason, without notice. Our Services may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons. In order to use our Services, you must have a computer with Internet access that can access our Site or a compatible mobile device enabled with our Apps.
When using our Services, your telecommunications carrier’s normal rates and charges apply. We are not responsible for any charges you incur from your telecommunications carrier as a result of use of our Services. You are responsible for ensuring that, at all times while using our Services, you are not in violation of your agreement with your telecommunications carrier.
3. License to Use; Login Credentials.
Subject to these Terms and any other agreement between you and us, where applicable to the Service you are receiving from us, we grant you a limited, personal, nonexclusive, nontransferable, non-sublicensable, revocable license to install and use the Apps on a compatible mobile device for your personal, non-commercial purposes and to use our Site, in each case solely in the manner enabled by us. Your license to use our Services is automatically revoked if you violate these Terms. From time to time, we may upgrade our Services or make improvements to our Services. You agree that these Terms will apply to all such upgrades or improvements. The foregoing license grant is not a sale of the Apps or the Site or a sale of a copy of the Apps or the Site, and we and our partners and suppliers retain all rights and interest in our Services. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. We reserve all rights not expressly granted under these Terms.
Fees. In order to use some of our Services, you must be a paid subscriber, as set forth on our Site from time to time. There may be some fees associated with using certain Services through our Apps, as set forth in our Apps. In addition, we may charge fees for use of our platform, as we may set forth on our Site or our Apps or as may be agreed to by us and you.
Payment. You agree that we may charge your payment method for any Services you purchase or subscribe to and for any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with your account associated with your Login Credentials (as defined below). All payments must be made in United States Dollars unless otherwise indicated by Embark at the point of sale.
Return/Refund Policy. You may return your unused test kit for a refund if such return is made within the applicable Return Period, as follows. If you purchased your test kit on or after October 1, 2022, the Return Period is 60 days from the date of purchase. If you purchased your test kit before October 1, 2022, the Return Period is 12 months from the date of purchase. Customers are not eligible for a refund after the Return Period has elapsed and are entitled only to receive the Genotyping and Methylation Services provided by your test kit, subject to the below Failed Sample Policy. The test kits and Genotyping and Methylation Services have no cash value and are not redeemable for money. We accept returns only for test kits that are in good and unused condition. Return for store credit is not available.
Failed Sample Policy. If our initial processing of your pet’s saliva sample fails for any reason and enough sample remains for reprocessing, we will reprocess the same sample at no charge to you. If the second attempt to process the same sample fails, we will contact you at the email address you originally provided when completing your order to offer to send you a new test kit at no charge. Within 30 days of receiving this offer, you may opt to decline, in which case you are entitled solely and exclusively to a refund of the amount you paid to us for testing of such sample, less shipping and handling, provided that you shall not submit another sample for the same pet through a future purchase of the Genotyping and Methylation Services. If you opt to receive another test kit and our attempts to process the second sample are unsuccessful, we will not send you additional test kits, and you will be entitled solely and exclusively to a refund of the amount paid to us, less shipping and handling, provided that you shall not submit another sample for the same pet through a future purchase of the Genotyping and Methylation Services. If, in breach of this Section 4(4), you submit another sample for the same pet through a future purchase of the Genotyping and Methylation Services, and processing is not successful, we will not offer to reprocess the sample or provide you a refund. If the processing of your saliva sample is successful, but any of the data generated during the laboratory process is uninterpretable or incorrect, you will not be entitled to any refunds.
5. Government Licenses.
We are not licensed by all state, federal, or international authorities for genetic testing, including epigenetics, conducted for veterinary-related purposes. If a jurisdiction requires our Services to be subject to a license and we do not have that license, we will not offer our Services in that jurisdiction.
6. Use of Information and Privacy.
Unless you elect not to allow your pet’s Genetic Information and Reported Information to be used for research purposes, we may include your pet’s information in the Aggregated Genetic Information and Reported Information, which will be disclosed to third-party non-profit and/or commercial research partners, or other third parties, who may publish such information in a peer-reviewed scientific journal. Our research may be sponsored by, or conducted on behalf of or in collaboration with, third parties, such as non-profit foundations, academic institutions or pharmaceutical companies.
We will never release identifying information combined with your pet’s individual-level Genetic Information and/or Reported Information to any third party without asking for and receiving your explicit consent to do so, unless required by law or regulation.
7. Embark Content; Uploaded Content.
You acknowledge that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such User Content originated. This means that you, and not Embark, are entirely responsible for all User Content that you upload, post, email, or otherwise transmit via the Service.
You acknowledge that the Services content presented to you as part of the Services, whether original Embark Services content or sponsored content within the Services, is protected by copyright and/or other intellectual property rights that are owned by Embark and/or sponsors who provide that content to Embark (or by other persons or companies on their behalf). Embark grants you a Limited License to copy and distribute free of charge, any of the Services content, provided you: (i) provide the Services content as it appears on the Embark website or Embark-generated reports with no changes including but not limited to presenting sections which might tend to misrepresent the substance of the Services content; (ii) include the following attribution on the first page of any materials you distribute: ©Embark Veterinary, Inc. 2015–2022. All rights reserved; distributed pursuant to a Limited License from Embark; and (iii) agree you have no right to offer anyone else any further right with respect to this Services content. Aside from the Limited License provided in this paragraph, you may not modify, rent, lease, loan, distribute, sell, or create derivative works based on this Services content (either in whole or in part) unless you have been specifically told that you may do so by Embark or by the owners of that content, in a separate agreement.
Subject to these Terms and any other agreement between you and us, we hereby grant you a limited, nonexclusive, non-sublicensable, revocable license to access and use the Content, subject to any restrictions on certain types of Content set forth in these Terms. This license is non-transferable except to subsequent and/or co-owners of the canine you tested with Embark who have been identified to Embark and have accepted these Terms of Service. ‘Content’ means all information, text, images, data, links, or other material posted on our Services that are (i) publicly available or (ii) which we permit you to access, whether created by us or provided by a third party for display through our Services.
You understand that the Content that is posted on our Services is used by you at your own risk. If you submit User Content, you may remove, modify or alter such User Content at any time, through functionality that we make available on our Site. However, by uploading or submitting Content, you grant Embark a limited, nonexclusive, license to access and use the User Content for any purpose (unless otherwise limited in this Policy), including marketing, enhancing services to other Customers, research, or public relations. This license is not deemed revoked by your removal of the User Content from your dog’s profile. Your User Content includes not only content concerning your dog, but also your uploaded reactions (e.g., “Wags”) to other customer’s User Content.
We reserve the right to make changes to Content, descriptions or specifications of our Services or other information without obligation to issue any notice of such changes.
Nothing contained on our Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use our Services or any Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with our prior written permission or the permission of the third party that may own the trademark or copyright of material displayed on the Site.
8. Prohibited Conduct.
As a condition of your use of our Services, you will not use our Services for any purpose that is unlawful or prohibited by these Terms. The unauthorized resale of any Embark kit, the purchase of any Embark kit for the purpose of unauthorized resale, or the marketing or representation of Embark kits for resale by anyone not expressly authorized to do so by Embark is Prohibited. You may not use our Services if you are barred from using them under the laws of the jurisdiction in which you are a resident or from which you use the Services. You may not use our Services in any manner that, in our sole discretion, could damage, disable, overburden, impair or interfere with any other party’s use of our Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through our Services. You agree not to use false or misleading information in connection with your user account or impersonate any other person living or dead, and acknowledge that we reserve the right to disable any user account with a profile that we reasonably believe is false or misleading (including a profile that impersonates a third party).
In addition, you agree that you will not, and will not authorize or facilitate any attempt by another person to use our Services to:
Transmit any Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious or otherwise objectionable, as determined by us.
Use a name or language that we, in our sole discretion, deem offensive.
Post defamatory statements.
Post hateful or offensive Content or Content that disparages any ethnic, racial, sexual, gender, religious or other group.
Post Content that depicts or advocates the use of illegal drugs.
Post Content that characterizes violence as acceptable, glamorous or desirable.
Post Content which infringes another’s copyright, trademark or trade secret.
Post unsolicited advertising or unlawfully promote products or services.
Harass, threaten, stalk or intentionally embarrass or cause distress to another person or entity.
Promote, solicit or participate in any multi-level marketing or pyramid schemes
Exploit children under 18 years of age.
Engage in disruptive activity, such as sending multiple messages in an effort to monopolize a forum.
Invade the privacy of any person, including, without limitation, posting personally identifying or otherwise private information about a person without their consent (or their parent’s consent in the case of a child under 13 years of age).
Solicit personal information from children under 13 years of age.
Create a false identity or impersonate another person or entity.
Encourage conduct that would constitute a criminal or civil offense.
We reserve the right to consider other conduct to be prohibited; the restrictions above are intended to be illustrative.
You agree not to, and will not permit any person or entity to: (i) use, or allow the use of, our Services for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable law, or rules and regulations of regulatory or administrative organizations; (ii) act in a fraudulent, tortious, malicious, or negligent manner when using our Services; (iii) obtain unauthorized access to any computer system through our Services; (iv) circumvent, remove or otherwise interfere with any security-related features of our Services, features that prevent copying or using any part of our Services or features that enforce limitations on the use of our Services or any Content; (v) introduce viruses, worms, Trojan horses and/or harmful code to our Services; and (vi) use any robot, spider, site search/retrieval application, or other automated device, process, or means to access, retrieve, scrape, or index any portion of our Services or any Content, except as permitted by our robots.txt file.
We reserve the right, without prior notice and in our sole discretion, to decide whether your use of our Services violates these Terms for any of the above reasons or for any other reason, and if we do so, we may terminate your access to our Services.
9. User Representations and Warranties.
By using our Services, you hereby agree, represent and warrant as follows:
You are the owner or co-owner of the canine tested, or you are an organization of which one or more members owns or co-owns the canine tested.
Any information that you obtain from our Services is not designed to diagnose, prevent, or treat any condition, disease or state of health.
If you use the Genotyping and Methylation Services, you give permission to us and our contractors, successors and assignees to perform those services on your pet’s saliva sample and you specifically request us to disclose the results of those services to you and to others you specifically authorize.
Any saliva sample you provide is not from a human.
If you are a customer outside the U.S. providing a saliva sample, you confirm that this act is legally permitted in the country in which you reside, including that providing your sample is not subject to any export ban or restriction in the country in which you reside.
You agree that any saliva sample you provide and all resulting data may be transferred and/or processed outside the country in which you reside.
You will comply with all applicable laws regarding the transmission of technical data exported from the United States or the country from which you access our Services online.
You are aware that some of the information you receive may not be welcome or positive and may provoke a strong emotion.
You take responsibility for all possible consequences resulting from your sharing with others access to your pet’s Genetic Information and Reported Information, including on our Site.
You understand that, by providing any saliva or other DNA sample, having your pet’s Genetic Information processed, accessing your pet’s Genetic Information, or providing your pet’s Reported Information, you acquire no rights in any research or commercial products that may be developed by us or our collaborating partners. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your pet’s Genetic Information or Reported Information.
10. Your Primary Veterinarian Information.
At any time, you may withdraw your consent to allow Embark to contact your primary veterinarian by managing the permission in your dog’s profile under the ‘Edit Profile’ page or by closing your account. If you experience problems managing your permissions or closing your account, please contact firstname.lastname@example.org. Any withdrawal of consent will take effect after thirty (30) days. We will not reverse, undo or withdraw any of your dog’s information that was shared with your primary veterinarian before that date.
11. Our Research Program.
If you are enrolled in our research program, we may use some or all of your pet’s Reported and Genetic Information to conduct research and publish the results of that research in scientific journals. You can provide us with Reported Information about your pet through forms, surveys and questions on our Site and Apps. You may choose to provide all, some, or none of the information requested by any form, survey or question.
We will not use any identifiable information about you or any other humans in our research or in any publication. Nor will we identify your pet’s name or other identifying information in any publication. In conducting and publishing our research, we may collaborate with third parties, including non-profit and commercial organizations. We will not provide your pet’s name or any information about you to any of our third-party research partners.
At any time, you may withdraw your consent to participate in our research program by changing the settings on your ‘Account Settings’ page or by closing your account. If you experience problems changing your settings or closing your account, please contact email@example.com. Any withdrawal of consent will take effect after thirty (30) days. We will not reverse, undo or withdraw any research or publication that was performed using your pet’s information before that date.
13. Intellectual Property Rights.
You agree and acknowledge that the structure, organization and code used in conjunction with our Services are proprietary to us. You shall not, and shall not permit any person or entity to: (i) use our Services on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (ii) alter, enhance, or make derivative works of our Services or any Content available through the foregoing; or (iii) reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from our Services. You shall not sell, transfer, publish, disclose, display or otherwise make available our Services, including any modifications, enhancements, derivatives and other software and materials provided hereunder by us or copies thereof to others in violation of these Terms.
Unless otherwise noted, all Content contained on our Services is the property of us and/or our affiliates or licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. Product names are trademarks or registered trademarks of their respective owners.
We welcome your feedback, ideas and suggestions (collectively, ‘Suggestions’). It is important to be aware of the following restrictions with regards to your Suggestions. If you send us any Suggestions, you agree that: (1) your Suggestion(s) become our property and you are not owed any compensation in exchange; (2) none of the Suggestion(s) contain confidential or proprietary information of any third party; (3) we may use or redistribute Suggestion(s) for any purpose and in any way; (4) there is no obligation for us to review your Suggestion(s); and (5) we have no obligation to keep any Suggestions confidential.
14. Copyright Infringement; DMCA Policy.
If you believe that any materials on our Services infringe your copyright, you may request that such materials be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative and must include the following information: (1) identification of the copyrighted work that you believe to be infringed, including a description of the work and, where possible, a copy or the location of an authorized version of the work; (2) identification of the material that you believe to be infringing and its location, including a description of the material, its location on our Site or location in our Apps or other pertinent information that will help us to locate the material; (3) your name, address, telephone number and email address; (4) a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent or the law; (5) a statement that the information in your claim is accurate; and (6) a statement that ‘under penalty of perjury,’ you declare that you are the lawful copyright owner or are authorized to act on the owner’s behalf. Our agent for copyright issues relating to our Services is:
Embark Veterinary, Inc.
186 Lincoln St.
Boston, MA 02111
15. Links to Third Party Sites.
16. Providers of Third Party Platforms.
You hereby acknowledge and agree that all of our licensors, suppliers or other third parties: (i) are not parties to these Terms; (ii) have no obligation whatsoever to furnish any maintenance or support services with respect to Embark; (iii) are not responsible for addressing claims by you or any third party relating to our Services, including without limitation any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; and (iv) have no responsibility to investigate, defend, settle or discharge any claim that our Services or use thereof infringes any third party intellectual property rights.
Under no circumstances will we be liable for any loss or damage caused by failed delivery or receipt of Content, your reliance on information from our Services, information provided by another user or by your use of our Services. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through our Services.
OUR SERVICES, ALL CONTENT ON OR ACCESSIBLE FROM OUR SERVICES, AND ALL PRODUCTS OR MERCHANDISE, INCLUDING DOG TAGS, ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, WE DO NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE THROUGH OUR SERVICES IS FREE OF ERRORS; (ii) THE FUNCTIONS OR SERVICES (INCLUDING, WITHOUT LIMITATION, MECHANISMS FOR DOWNLOADING AND TRANSMITTING CONTENT) PROVIDED BY OUR SERVICES WILL BE UNINTERRUPTED, SECURE OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THAT OUR SERVERS OR THE SERVER(S) THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
WE AND OUR AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.
18. Limitation of Liability.
- Disclaimer. IN NO EVENT SHALL WE BE LIABLE TO YOU, ANY OTHER USER OF OUR SERVICES, THIRD PARTY PROVIDERS OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF THE USE, INABILITY TO USE, UNAUTHORIZED ACCESS TO OR USE OR MISUSE OF OUR SERVICES, YOUR CONTACT INFORMATION, CONTENT OR ANY INFORMATION CONTAINED THEREON, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. If you are dissatisfied with any portion of the Services or with any statement in these Terms, your sole remedy is to stop using the Services and, if you are using any of our subscription Services, cancel your subscription .
- Limitation. OUR AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM THESE TERMS SHALL NOT EXCEED THE GREATER OF (I) $100.00 OR (II) THE AGGREGATE AMOUNT YOU HAVE PAID TO US IN FEES, IF ANY, IN THE THEN-PRIOR TWELVE (12) MONTH PERIOD.
- Exclusions. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU BUT SHALL INSTEAD APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- This limitation of liability applies fully to residents of New Jersey.
19. Services Offered by Other Companies
We may offer you the opportunity to purchase services from companies other than Embark. Use of those services will be subject to the terms and conditions of the companies offering the services. Please read those terms carefully. We have no responsibility related to any such third-party services.
20. Jurisdictional Issues.
21. Modifying and Terminating Service.
We may terminate your access to our Services, in our sole discretion, for any reason and at any time, upon electronic notice to you at the email address provided by you at registration or that you subsequently update. You agree that we are not liable to you or any third party for any termination of your access to our Services. We may change and update our Services from time to time. We may add or remove features including, without limitation, making free services into paid services and vice versa. We will give you appropriate advance notice about any major changes, although you understand that we may stop, suspend or change our Services at any time without prior notice. You may terminate these Terms at any time by ceasing to use our Services.
The following Sections of these Terms and any accrued obligations, along with any definitions needed to interpret the Sections, will survive any termination of these Terms according to their respective provisions: 1, 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24.
22. Governing Law; Dispute Resolution.
These Terms, and any dispute between you and us, shall be governed by the laws of the Commonwealth of Massachusetts without regard to principles of conflicts of law that would result in the application of the law of any other jurisdiction, except that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provisions set forth below. Unless you and we agree otherwise, in the event that Section 22 is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state court located in Massachusetts or a federal court located in Massachusetts, except that you or we are permitted (1) to bring small claims actions in state court in the county in which you reside if such court has a small claims procedure; (2) to bring claims for injunctive relief in any court having jurisdiction over the parties; or (3) to seek enforcement of a judgment in any court having jurisdiction over the parties. To the extent permitted by law, you and we agree to waive trial by jury in any court proceeding.
23. Agreement to Arbitrate; Waiver of Class Action.
Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to the Arbitration Procedures (other than a change to any notice address or Site link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the change. Moreover, if we seek to terminate the Arbitration Procedures from these Terms, such termination shall not be effective until thirty (30) days after the version of these Terms not containing the Arbitration Procedures is posted to our Site, and shall not be effective as to any claim that was filed in a legal proceeding against us prior to the effective date of removal.
In accordance with Section 21, this Arbitration section will survive the termination of your relationship with us.
You may not assign or transfer your rights or obligations under these Terms in whole or in part to any third party without our consent. These Terms shall bind and inure to the benefit of the parties to these Terms and their respective successors, permitted transferees and permitted assigns. We and you are independent contractors and are not partners, joint ventures, agents, employees or representatives of the other party. These Terms contain the entire understanding of the parties with respect to the transactions and matters contemplated herein, supersede all previous communications, understandings and agreements (whether oral or written) other than any click-through or end user license agreement provided by us, and cannot be amended except by a writing signed by both parties or by our posting of an amended version of these Terms on our Site. The headings and captions used in these Terms are used for convenience only and are not to be considered in construing or interpreting these Terms. If any part of these Terms is held to be unlawful, void, or unenforceable, that part will be deemed severable and shall not affect the validity and enforceability of the remaining provisions.
Our Services are available only to, and may only be used by, individuals who are 18 years and older and who can form legally binding contracts under applicable law. Children under the age of 18 may only use our Services with and under the supervision of a parent. In such a case, the parent is responsible for any and all activities of such minor. If you are a parent or guardian and you discover that your child has created an unauthorized account on our Services, please contact us at firstname.lastname@example.org and we will remove the account.
26. eGift Card Additional Terms of Service
The following terms and conditions apply to any EmbarkVet Gift card originally purchased by you or someone on your behalf.
Embark Gift cards can be applied only to purchases made on embarkvet.com.
Embark Gift cards do not expire.
At this time, Embark does not charge a service fee or inactivity fee to Gift cards.
Gift cards cannot be used to purchase gift cards. Gift cards may not be purchased using promotional offers or discounts.
Gift cards are not redeemable for cash and cannot be returned for a cash refund, except to the extent required by law.
Use of a Gift card is limited to the amount of funds held on the Gift card. The full amount of each purchase, including taxes, will be deducted from the funds held on the Gift card, until the Gift card balance reaches zero. Any unused balance will be placed in the recipient’s Gift card account and is not transferable.
Purchase amounts that exceed the value of the tendered Gift card will require an additional payment for the balance due.
The risk of loss and title for Gift cards pass to the purchaser upon our electronic transmission to the purchaser. We are not responsible for and will not replace lost or stolen Gift cards. Protect your Gift card as if it were cash and safeguard the Gift card from authorized use.
Embark may provide Gift card purchasers with information about the redemption status of Gift cards.
If we suspect any fraud or misuse in connection with a Gift card, we reserve the right in our discretion to suspend or terminate use of the Gift card.
To obtain your Gift card balance, use the link in the order confirmation email, or call toll-free (224) 236-2275
Embark reserves the right to change these Terms from time to time in its discretion. Such revised terms will be effective as to any Gift cards purchased after the date said revised Terms are posted to the Embark website.
By using a Gift card you agree to comply with these terms and conditions, and not to use a Gift card in any manner that is misleading, deceptive, unfair, or otherwise harmful to Embark, its affiliates, or its customers. We reserve the right, without notice to you, to void Gift cards without a refund, suspend or terminate customer accounts, suspend or terminate the ability to use our services, cancel or limit orders, and bill alternative forms of payment if we suspect that a Gift card is obtained, used, or applied fraudulently, unlawfully, or otherwise in violation of these terms and conditions.
27. Invoicing Terms
At Embark’s sole discretion, eligible Customers may elect to be invoiced by Embark for our veterinary products, in which case the eligible Customer agrees to remit timely payment of invoiced amounts. Payment shall be due within 30 days of the invoice date unless otherwise agreed in writing by the parties. Notwithstanding any other rights of Embark, in the event of late payment by Customer, Embark shall be entitled to interest on the amount owing at a rate of 1.5% per month or the highest rate allowed by applicable law, whichever is less. If Embark is required to initiate legal action due to nonpayment of invoiced amounts, Customer shall bear all costs, including Embark’s legal fees, resulting from the collection of such amounts. Embark reserves the right to refuse to continue to offer payment-by-invoice to any Customer, including veterinary professionals with outstanding balances or a history of late payment.
28. For Additional Information.
If you have any questions about these Terms, please contact us at: email@example.com.
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