Terms of Service

Effective Date: 04/07/16

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 OR APP. BY USING OUR SERVICES, INCLUDING OUR SITE OR APPS, 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 21 'AGREEMENT TO ARBITRATE').

1.  Definitions.

a.     '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.

b.     'Apps': Any downloadable applications we make available to you.

c.     'Embark', 'we', 'us' or 'our': Embark Veterinary, Inc.

d.     'Genetic Information': Information regarding your pet's genotype (i.e., collection of genes) obtained through processing and analysis of your pet's saliva by us or our contractors, successors and assignees.

e.     'Personal Information': Information that can be used to identify you, either alone or in combination with other information.

f.      '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).

g.     'Services': Our products, software, services, Site, and/or Apps.

h.     'Site': embarkvet.com and its subdomains.

i.      'Terms': These Terms of Service, which are a legally binding agreement that governs your access to our Services.

j.      'you' or 'your': You.

2.  Our Services.  

a.     Genotyping.  If you purchase our 'Genotyping 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 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 saliva samples that you send to us will be returned to you. 

b.     Site and Apps.  Our Site and 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.

c.     Scanable Items.  If you provide us with your pet's Reported Information and/or purchase our Genotyping Services, you may receive for free or have the option to purchase items, such as a dog tag or collar, on which a Quick Response ('QR') code will be printed.  When that QR code is scanned with any smartphone that has our Apps, the Apps will display any Reported and/or Genetic Information about your pet that you have chosen to display, including standard Reported and/or Genetic Information that you have not opted out of displaying.

d.     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 10, to expand the understanding and practical application of genetic knowledge in veterinary care and dog wellness generally.

e.     Acknowledgement to Receive Email and Push Notifications.  As a registered user of our Services, you agree to receive emails and push notifications (if you use our Apps) from us regarding our Services. We may from time to time send you push notifications or email messages with information about your use of our Services.  You may opt-out from receiving our newsletter by emailing unsubscribe@embarkvet.com or selecting to unsubscribe as may be provided in the applicable email 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, 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. 

In order to use some functionality of our Services, you will be required to register by providing certain information. We may ask you to complete a registration form and create a user name and password ('Login Credentials').  During any such registration, you are required to give truthful contact information (such as name and email address) in accordance with these Terms.  You are responsible for protecting your Login Credentials from unauthorized use, and you are responsible for all activity that occurs on your account (including, without limitation, financial obligations).  You agree to notify us immediately if you believe that your Login Credentials have been or may be used without your permission so that appropriate action can be taken.  We are not responsible for losses or damage caused by your failure to safeguard your Login Credentials. All information that you provide through our Services is subject to our Privacy Policy embarkvet.com/privacypolicy, as may be in effect from time to time. You are responsible for keeping your registration information up to date through your account page, to the extent such feature is made available on our Site.

 

4.  Fees.   

a.     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 are 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.

b.     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.

c.     Billing and Payment Policy. All information that you provide to register with us, including your credit card information or payment account information, is subject to our Privacy Policy.  We may use a third party payment service to bill you through an online account (your 'Billing Account') for your subscription payment or purchase of Services in lieu of directly processing your credit card information.  By submitting your payment account information, you grant us the right to store and process your information with the third party payment service, which may change from time to time; you agree that we will not be responsible for any failures of the third party to adequately protect such information.  The processing of payments will be subject to the terms, conditions and privacy policies of such third party payment service in addition to these Terms. You acknowledge that we may change the third party payment service and move your information to other service providers that encrypt your information using secure socket layer technology (SSL) or other comparable security technology.

d.     Refunds.  Other than as may be expressly set forth in this Section 4(d) or on our Site, as updated from time to time, we have no obligation to provide refunds or credits, but may grant them in certain circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by us, in each case in our sole discretion. 

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 offer to send you a new saliva collection kit at no charge.  If you decline this option, you are entitled solely and exclusively to a complete 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 Services.  If you opt to receive another sample collection kit and our attempts to process the second sample are unsuccessful, we will not send you additional sample collection kits, and you will be entitled solely and exclusively to a complete 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 Services.  If, in breach of this Section 4(d), you submit another sample for the same pet through a future purchase of the Genotyping 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 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.

 

Our Privacy Policy embarkvet.com/privacypolicy (the 'Privacy Policy'), describes the collection, use and disclosure of data and information by us in connection with our Services.  The Privacy Policy, as may be updated by us from time to time in accordance with its terms, is hereby incorporated into these Terms, and you hereby agree to the collection, use and disclosure practices set forth therein.  You may not use the Services if you do not agree to the Privacy Policy.

 

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.

 

By using our Services, you consent to receiving communications from us as further described in the Privacy Policy. Please read the Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including written communications.

 

7.  Embark Content; Uploaded Content.

Subject to these Terms and any other agreement between you and us, we hereby grant you a limited, personal, nontransferable, nonexclusive, non-sublicensable, revocable license to access and use the Content, solely for your personal and non-commercial use, and subject to any restrictions on certain types of Content set forth in these Terms.  '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 have submitted Content, you may remove, modify or alter such Content at any time, through functionality that we make available on our Site.

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.  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:

 

a.     Transmit any Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, lewd, lascivious or otherwise objectionable, as determined by us.

b.     Use a name or language that we, in our sole discretion, deem offensive.

c.     Post defamatory statements.

d.     Post hateful or offensive Content or Content that disparages any ethnic, racial, sexual, gender, religious or other group.

e.     Post Content that depicts or advocates the use of illegal drugs.

f.      Post Content that characterizes violence as acceptable, glamorous or desirable.

g.     Post Content which infringes another's copyright, trademark or trade secret.

h.     Post unsolicited advertising or unlawfully promote products or services.

i.      Harass, threaten, stalk or intentionally embarrass or cause distress to another person or entity.

j.      Promote, solicit or participate in any multi-level marketing or pyramid schemes.

k.     Exploit children under 18 years of age. 

l.      Engage in disruptive activity, such as sending multiple messages in an effort to monopolize a forum.

m.   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).   

n.     Solicit personal information from children under 13 years of age. 

o.     Create a false identity or impersonate another person or entity.

p.     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:

a.     Any information that you obtain from our Services is not designed to diagnose, prevent, or treat any condition, disease or state of health.

b.     If you use the Genotyping 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.

c.     Any saliva sample you provide is not from a human.

d.     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.

e.     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.

f.      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.

g.     You are aware that some of the information you receive may not be welcome or positive and may provoke a strong emotion.

h.     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.

i.      You understand that all your Personal Information and all of your pet's Genetic and Reported Information will be stored in Embark's databases and will be processed in accordance with our Privacy Policy.

j.      You understand that, by providing any saliva 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.  Our Research Program.

Part of our mission is to participate in research for the purpose of expanding the understanding and practical application of genetic knowledge in veterinary care.  If you create an account on our Site or Apps, you will be asked whether you wish to participate in our research program.  If you do not wish to participate in our research program, you must select the option 'I DO NOT WISH TO PARTICIPATE' when prompted via or Apps or the Site.  If you do not select this option, you will be enrolled in the research program.  If you elect not to participate in our research program, your Personal Information and your pet's Reported and Genetic Information may still be used for other purposes, as described in our Privacy Policy. 

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 support@embarkvet.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. 

We may withdraw your pet's Genetic and/or Reported Information from, or terminate, any research we undertake at any time without your consent.  In all cases, your and your pet's information will continue to be subject to our Privacy Policy.

11.  Indemnification.

By using our Services, you hereby agree to indemnify and hold harmless us and our officers, directors, employees and agents from any claims, damages, losses, liabilities, and all costs and expenses of defense (collectively, 'Claims'), including without limitation attorneys' fees, resulting directly or indirectly from (i) your use of our Services, (ii) any use or disclosure of any information that is obtained from our Genotyping Services and disclosed to you consistent with our Privacy Policy, (iii) any disclosure by you, whether intentionally or unintentionally, of your pet's Genetic and/or Reported Information to any third party, (iv) your provision of any Content and/or (v) any user's or other third party's use of any Content that you submit via our Services.  At our option, you agree to defend us from any such Claims.

12.  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.

13.  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:

Ryan Boyko

Embark Veterinary, Inc.

901 Red River St Ste 1315

Austin, TX 78701

Phone: 224-236-2275

Email: ryan@embarkvet.com

 

14.  Links to Third Party Sites.

Our Services may contain links to third party sites. These links are provided to you as a convenience, and we are not responsible for the content of any linked third party site.  Any third party site accessed from our Services is independent from us, and we have no control over the content of that site. In addition, a link to any third party site does not imply that we endorse or accept any responsibility for the content or use of such site.  Use of any third party site is subject to its terms of service and privacy policy. We request that you exercise caution and good judgment when using third party sites.

15. 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. 

 

16.  Disclaimer.

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 AND ALL CONTENT ON OR ACCESSIBLE FROM OUR SERVICES 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, BUTWITHOUT 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.

 

17.  Limitation of Liability.

a.     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. 

b.     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.

c.     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. 

18.  Jurisdictional Issues.

We make no representation that information on our Services is appropriate or available for use outside the United States.  Those who choose to access our Services from outside the United States do so on their own initiative and at their own risk and are responsible for compliance with applicable local laws.  By using our Services, you consent to having any Content you provide, your Login Credentials and any personal information that you provide as part of the account creation process transferred to and processed in the United States subject to the restrictions on such data as provided in our Privacy Policy posted through our Site from time to time. 

19.  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, 14, 15, 16, 17, 18, 19, 20, 21 and 22.

20.  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 21 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.

21.  Agreement to Arbitrate; Waiver of Class Action.

Except for disputes relating to your or our intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents), or for items (1)-(3) set forth in Section 20, you agree that all disputes between you and us (whether or not such dispute involves a third party) arising out of or relating to these Terms, our Services, and/or our Privacy Policy shall be finally resolved by arbitration before a single arbitrator conducted in the English language in Boston, Massachusetts, U.S.A. under the Commercial Arbitration Rules of the American Arbitration Association (AAA), and you and we hereby expressly waive trial by jury. You and we shall appoint as sole arbitrator a person mutually agreed by you and us or, if you and we cannot agree within thirty (30) days of either party's request for arbitration, such single arbitrator shall be selected by the AAA upon the request of either party.  The parties shall bear equally the cost of the arbitration (except that the prevailing party shall be entitled to an award of reasonable attorneys' fees incurred in connection with the arbitration in such an amount as may be determined by the arbitrator). All decisions of the arbitrator shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Under no circumstances shall the arbitrator be authorized to award damages, remedies or awards that conflict with these Terms.

Any claims brought by you or us must be brought in that party's individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by these Terms. You hereby waive any and all rights to bring any claims related to these Terms and/or our Privacy Policy as a plaintiff or class member in any purported class or representative proceeding. You may bring claims only on your own behalf.

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 19, this Arbitration section will survive the termination of your relationship with us.

 

22.  Miscellaneous.

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 venturers, 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. 

23.  Minors.

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 support@embarkvet.com and we will remove the account.

24.  For Additional Information.

If you have any questions about these Terms, please contact us at: legal@embarkvet.com.