PetDesk® Subscriber Terms of Service
These Terms and Conditions to the Service Agreement (these “Terms”) govern Subscriber’s use of the services made available by Locai, Inc. (“PetDesk”) pursuant to that certain Service Agreement (defined below) that Subscriber has entered into with PetDesk. These Terms and the Service Agreement are collectively referred to as the Agreement in these Terms.
Effective Date: March 31, 2020
1.1 “Service Agreement” means that certain PetDesk Service Agreement in which Subscriber has purchased a license to use one or more of the Platform functionalities. The PetDesk Service Agreement includes the price of the service, the term during which services will be provided, the number of Subscriber seat licenses on the Platform, and the setup and support services offered in connection with the Platform.
1.2 “Client” means any end user of the Platform who is a customer of Subscriber and receives communications from Subscriber.
1.3 “Client Data” means any data, information or material pertaining to any Client submitted by Subscriber to the Platform. Client Data includes, but is not limited to, Client Personal Information.
1.4 “Client Personal Information” means a Client’s personally identifiable information, including, but not limited to name, postal address, email address, mobile telephone number, text, photos, videos, voice, recordings, and/or IP address.
2.1 Fees. All fees and payment terms concerning Subscriber access to the Platform is set forth in the Service Agreement. Subscriber must contact PetDesk no later than forty-five (45) calendar days after the closing date on the first invoice in which the error or problem appeared in order to receive an adjustment or credit for any incorrect invoice.
2.2 Price Changes. Unless Subscriber purchases upgrades or other products, PetDesk will not increase the Subscriber’s fees for the one (1) year period following the effective date of the Service Agreement. PetDesk may add additional functionality to the Platform (e.g., in the form of materially updated functionality modules) for an additional fee to be paid by Subscriber. Subscriber may elect in its discretion to receive or decline any such new functionality modules. PetDesk may increase Subscriber’s fees any time after the one (1) year period following the effective date of the Service Agreement by providing thirty (30) days’ written notice to Subscriber of any such fee increase.
2.3 No Refunds. Subscriber is not entitled to any refunds for any fees paid under these Terms or the Service Agreement if the Agreement is terminated by PetDesk due to Subscriber’s breach of any material terms of the Agreement.
3. Platform License Grant.
3.1 License Grant to Platform. PetDesk hereby grants Subscriber a limited, non-exclusive, nontransferable right to access and use the Platform, solely for Subscriber’s internal business purposes, subject to the terms and conditions of the Agreement and Subscriber being current with all fees due thereunder. All rights not expressly granted to Subscriber are reserved by PetDesk and/or its respective licensors. This license will terminate upon any termination or expiration of the Agreement.
3.2 Third Party Licensors. The Platform may operate, interface or be delivered with software or other technology or service that is licensed from and owned by third parties (“Third-Party Licensor(s)”). Subscriber agrees that: (i) it will use third-party software or other technology or service provided by Third-Party Licensors in accordance with the Agreement; (ii) no Third-Party Licensor makes any representation or warranty to Subscriber concerning the Platform; and (iii) no Third-Party Licensor will have any obligation or liability to Subscriber as a result of the Agreement or Subscriber’s use of the Platform. Without limiting the foregoing, Subscriber acknowledges and agrees that it has no independent right, title, or interest in any third party software or other technology or service provided by Third Party Licensors (including, without limitation, any text messaging short codes), whether during or after the term of the Agreement.
3.3 Operational Service Providers. PetDesk may, from time to time, in its sole discretion, engage third parties to perform operational support or other related services to PetDesk related to the Platform.
3.4 Additional Restrictions. Subscriber agrees not to do any of the following: (i) reverse engineer, decompile, disassemble, translate, modify, alter or otherwise change the Platform, or any part thereof; (ii) attempt to derive the source code or structure of the Platform, or any part thereof; (iii) remove from the Platform, or alter, any of PetDesk’s or any of PetDesk’s licensors’ trademarks, trade names, logos, patent or copyright notices, or other notices or markings; or (iv) distribute, resell, sublicense or otherwise transfer access to the Platform to others. If PetDesk determines, in its sole discretion, that Subscriber’s use of the Platform is in violation of the Agreement or any supplemental terms applicable to such use, PetDesk reserves the right to suspend, decline to renew or terminate the Agreement.
3.5 Feedback. Subscriber is under no obligation to provide PetDesk with any feedback, corrections or suggestions regarding the Platform. In the event that Subscriber provides any feedback to PetDesk regarding the Platform, including, but not limited to, any improvements, corrections or modifications thereto (collectively, “Feedback”), Subscriber hereby grants to PetDesk a worldwide, fully-paid-up and royalty-free, perpetual, irrevocable, non-terminable, non-exclusive right to integrate and use and otherwise exploit all such Feedback in PetDesk’s products and services, including the Platform, without restriction or any accounting to Subscriber.
3.6 Subscriber Equipment and Systems. Subscriber shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including, without limitation, modems, mobile communication devices, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Subscriber has and will retain sole responsibility for (i) Subscriber’s information technology infrastructure, including, without limitation, computers, software, databases, electronic systems (including, but not limited to, database management systems) and networks, whether operated directly by Subscriber or through the use of third-party services (“Subscriber Systems”), and (ii) all access to and use of the Platform directly or indirectly by or through the Subscriber Systems or its Subscribers’ access credentials, including, without limitation, all results obtained from, and all conclusions, decisions and actions based on, such access or use. Subscriber represents and warrants that at all times during the term it will (x) set up, maintain and operate in good repair all Subscriber Systems on or through which the Platform are accessed or used and (y) provide all cooperation and assistance as PetDesk may reasonably request to enable PetDesk to exercise its rights and perform its obligations under and in connection with the Agreement.
4. Intellectual Property.
4.1 Materials. The Platform and all content related thereto, including, without limitation, all text, software, graphics, photos, sounds, videos, interactive features and any trademarks, service marks and logos contained in the Platform (collectively, “Materials”) are owned by PetDesk or licensed to PetDesk, subject to copyright, trademark and other intellectual property rights under United States and foreign laws and international conventions. PetDesk hereby grants Subscriber a limited, non-exclusive non-transferable right to use the Materials solely pursuant to Subscriber’s use of the Platform.
4.2 Restrictions on Use of Materials. No Materials from the Platform may be copied, reproduced, republished, modified, used to create derivative works, uploaded, posted, transmitted, distributed or otherwise exploited, in whole or in part, in any way without the prior written consent of PetDesk. Subscriber agrees not to circumvent, disable, or otherwise interfere with security related features of the Platform or features that prevent or restrict use or copying of any Materials or content. Modification of any Materials or unauthorized use of any Materials is a violation of PetDesk’s copyrights and proprietary rights, or of other entities or persons where so indicated, unless PetDesk or the owner has provided such Materials for such express purpose in writing and in advance of any such use. All design rights, databases and compilation and other intellectual property rights associated with the Service, in each case whether registered or unregistered, and related goodwill, are proprietary to PetDesk.
4.3 License to Use Subscriber Intellectual Property. To facilitate white labeling, Subscriber hereby grants to PetDesk a non-exclusive, worldwide, royalty-free, fully paid up right and license to use any and all logos, designs, trademarks, content, data, videos, and ideas provided by or on behalf of Subscriber to “white label” messages sent by Subscriber to Clients on the Platform. This limited license shall expire upon the termination of the Agreement subject to PetDesk’s retention of any messages or materials for archival purposes.
5.1 Subscribers will agree to follow AVMA veterinary guidelines for their veterinary practice and application of telemedicine. Those subscribers using any part or portion of PetDesk’s services and products to provide telemedicine to patients/users, must have a valid license to practice veterinary medicine that is current and licensed in the state in which the practice is located. PetDesk does not hold a valid license and does not practice veterinary medicine and will not interfere with, influence or prevent the subscriber’s use of telemedicine and does not endorse or support advice or diagnosis provided between a subscriber and a user. Subscribers will be liable and responsible for all medical advice, diagnosis or professional opinions provided to users.
5.2.1 Telemedicine as provided by these Terms is defined as a product or service that allows a veterinary clinic the ability to synchronously or asynchronously discuss a pet’s health through mediums such as SMS two-way text messaging (which may contain photos), live video or chat, provided by a 3rd party partner/vendor that virtually connects the subscriber to the user.
5.2.2 Access to 3rd party telemedicine companies may be made available through the PetDesk Mobile app at the request of the subscriber. PetDesk does not support, endorse or have an affiliation with a 3rd party telemedicine company, unless expressly written in the Terms.
6. Client Data.
6.1 License Grant to Client Data. Subscriber owns all Client Data uploaded to the Platform from time to time during the term of the Agreement. Subject to the foregoing, Subscriber herby grants PetDesk an unlimited, irrevocable, perpetual, nonexclusive, sublicensable (through multiple tiers), worldwide, fully-paid up, royalty-free and transferable license to display, improve exploit, manipulate, transform or otherwise use any Client Data or other data submitted by Subscriber to the Platform for the purposes of facilitating the delivery of services or products to Subscriber or Clients, PetDesk’s internal and external business purposes (including, without limitation, marketing or other communications), or for any other purpose determined by PetDesk (including, without limitation, as requested by a Client or former Client). PetDesk may provide Client Data and other data on the Platform available for Subscriber’s personal download and personal use. PetDesk may retain Client Data indefinitely or as it otherwise determines. Irrespective of the availability of any Client Data or data available for download, Subscriber is solely responsible for maintaining and keeping backup copies of all Client Data. PetDesk is not responsible for and hereby disclaims any and all liability for any lost data or corrupted data concerning or relating to any Client Data, other data on the Platform or the Platform.
6.2 Subscriber’s Client Data Responsibilities. Subscriber has the sole responsibility for the input, accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Client Data or other data submitted by Subscriber to the Platform. PetDesk shall not, under any circumstances, be responsible or liable for its or Subscriber’s deletion, correction, destruction, damage loss or failure to store any Client Data or such other data.
7. Representations and Warranties.
7.1 Subscriber’s Representations and Warranties. Subscriber represents at all times during the term of the Service Agreement that:
7.1.1 it has the legal authority to enter into these Terms and the Service Agreement;
7.1.2 no approval or other action by any governmental authority or agency, or any other individual or entity, is required in connection herewith;
7.1.3 it is engaged in a lawful business and are duly licensed to conduct such business under the laws and regulations of all jurisdictions in which Subscriber conducts business.
7.1.4 it is solely responsible for all actions taken by Subscriber’s personnel on the Platform;
7.1.5 it will implement and maintain reasonable security practices and procedures appropriate to the nature of its Client Personal Information that will protect the Client Personal Information from unauthorized collection, access, destruction, use, modification, or disclosure;
7.1.6 it will notify PetDesk immediately of any known or suspected unauthorized access to or acquisition of, or use of any password or account or any other known or suspected breach of security that could impact the Platform;
7.1.7 it will send messages Clients on or through the Platform only in a professional and courteous manner;
7.1.8 it has obtained all necessary consents from its Clients for PetDesk to send communications to Clients on behalf of Subscriber through the Platform;
7.1.9 it will obtain all requisite consents necessary to use the Client Data on the Platform, including any verification and authentication of the Client, and to grant the licenses in Section 5;
7.1.10 all of its Client Personal Information is correct and complete to the best of Subscriber’s knowledge; and
7.1.11 it will not send communications to any Client after receipt of an opt-out request from such Client, except to confirm the opt-out request in compliance with applicable law.
7.2 PetDesk’s Representations and Warranties. PetDesk represents and warrants during the term of the Service Agreement that:
7.2.1 it will implement and maintain reasonable security practices and procedures appropriate to the nature of Subscriber’s Client Personal Information that will protect such Client Personal Information from unauthorized collection, access, destruction, use, modification, or disclosure;
7.1.3 that all Materials provided by PetDesk hereunder are owned solely by PetDesk or are appropriately licensed to PetDesk for use on its Platform and do not/will not infringe on the rights of any third party; and
7.1.4 it will use reasonable efforts to render services pursuant to the Agreement in a timely, professional and workmanlike manner in accordance with Subscriber’s timelines established herein.
ANY CLAIM FOR BREACH OF THE FOREGOING WARRANTY UNDER THIS SECTION 7.2.4 MUST BE BROUGHT WITHIN SIXTY (60) DAYS AFTER SUBSCRIBER’S ACTUAL DISCOVERY OF ANY DEFECT AND PRIOR TO THE EXPIRATION OF SIX (6) MONTHS FROM THE DATE THE APPLICABLE SERVICES WERE RENDERED. SUBSCRIBER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT PETDESK WILL HAVE NO LIABILITY FOR ANY WARRANTY CLAIM MADE AFTER SUCH TIME.
The warranties in this Section 7.2 will not apply to any defects or problems caused in whole or in part by: (i) defects in any of Subscriber’s Equipment or Subscriber Systems; (ii) failure of any portion of Subscriber’s Equipment or Subscriber Systems to function in accordance with manufacturers’ specifications; (iii) failure of Subscriber to follow PetDesk’s most current instructions for proper use of Subscriber’s Equipment or Subscriber Systems with PetDesk’s licensed software and the Platform; (iv) abuse, negligence, or misconduct of Subscriber or any person using Subscriber’s account and/or passwords to access or use the Platform; (v) delayed transmission or delivery of messages, service failures; or any actions taken by a wireless carrier or network; and (vi) causes beyond the reasonable control of PetDesk, including but not limited to, flood, riot, fire, judicial or government action, labor dispute, or acts of God.
7.3 Third-Party IP Infringement. If any portion of the Platform is, or in PetDesk’s opinion, is likely to, infringe or be claimed to infringe, misappropriate or otherwise violate any third-party intellectual property right, or if Subscriber’s or any Client’s use of the Platform is enjoined or threatened to be enjoined, PetDesk may, in its sole discretion and at its cost and expense: (i) obtain the right for Subscriber or Clients to continue to use the Platform as contemplated by the Agreement; (ii) modify or replace the Platform, in whole or in part, to seek to make the Platform (as so modified or replaced) non-infringing, while providing equivalent features and functionality, in which case such modifications or replacements will constitute Platform, as applicable, under the Agreement; or (iii) by written notice to Subscriber, terminate the Agreement with respect to all or part of the Platform, and require Subscriber to immediately cease any use of the Platform or any specified part or feature thereof. THIS SECTION 7.3 SETS FORTH SUBSCRIBER’S SOLE REMEDIES AND PETDESK’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE AGREEMENT OR ANY SUBJECT MATTER HEREOF INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY’S INTELLECTUAL PROPERTY RIGHT.
8.1 Disclaimer of Warranties: EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THE AGREEMENT, ALL SERVICES AND THE PLATFORM ARE PROVIDED “AS IS” AND PETDESK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND PETDESK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PETDESK MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, THE PLATFORM OR THE USE THEREOF, WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
8.2 Content of Messages. PetDesk is, under no circumstances, responsible for the contents and/or accuracy of Subscriber’s messages to Clients and PetDesk will only transmit such messages on a basis of good faith that Subscriber uses the Platform in accordance with the Agreement. Subscriber is solely responsible for providing the content of all messages initiated by Subscriber through the Platform. PetDesk will not be liable for any misuse of the Platform by Subscriber. PetDesk is not responsible for the views and opinions contained in any of Subscriber’s messages.
8.3 Availability of Platform. Subscriber acknowledges and agrees that the Platform is run by software that is designed to be active 24 hours per day, 365 days per year, subject to schedule maintenance; however, software in general is not error-free and the existence of any errors in PetDesk software used to deliver the Platform or the failure to achieve such activity shall not constitute a breach of the Agreement. In the event that PetDesk discovers a material error or problem with Subscriber’s Equipment or Subscriber Systems or other interface which substantially affects Subscriber’s use of the Platform, PetDesk shall use reasonable measures to restore access to Subscriber’s service, provided that such error or problem has not been caused by incorrect use, abuse or corruption of the Platform software or by improper use of the Platform by Subscriber with other software or on Equipment which it is incompatible, or by a third party or unauthorized person accessing the service through Subscriber’s passcodes.
8.4 Downstream Network Limitations. PetDesk only warrants that communications through the Platform are processed correctly and further transmitted by PetDesk to the applicable downstream network. PetDesk is not responsible for the final delivery of any communication initiated by Subscriber through the Platform, as this is out of PetDesk’s control and is the responsibility of downstream communications carriers. PetDesk transmits and receives live video, videos, pictures, files, voice, SMS, and MMS messages via other major telecommunications companies and mobile network operators, and thus PetDesk’s influence over the timing of the transmission of Subscriber’s messages is within the technical constraints imposed upon PetDesk. While PetDesk will use commercially reasonable efforts to transmit Subscriber’s messages and broadcasts to the applicable network for final delivery to Subscriber’s designated Clients as quickly as possible, PetDesk cannot commit to, and does not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various parties involved in the transmission of Subscriber’s messages across the public switched telephone network and/or Internet. Subscriber understands and acknowledges that communications carriers assign messages with a default lifetime and any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the relevant communications carrier without any notice. PetDesk is not liable for any loss incurred by the failure of a message to be delivered, and Subscriber acknowledges that PetDesk has no liability whatsoever for any damages for financial or other loss resulting from any delivery failure whatsoever.
9. Limitations on Liability.
EXCEPT FOR THE OBLIGATIONS OF INDEMNIFICATION SET FORTH IN SECTION 9, BELOW, IN NO EVENT WILL PETDESK NOR ITS AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, OPERATIONAL SERVICE PROVIDERS, LICENSORS, REPRESENTATIVES, AND AGENTS, AND THE SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING BE LIABLE TO SUBSCRIBER FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, (EVEN IF PETDESK HAS BEEN ADVISED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE OR SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR ARISING OUT OF OR RELATED TO THE AGREEMENT. PETDESK’S TOTAL LIABILITY TO SUBSCRIBER HEREUNDER, IF ANY, WILL IN NO EVENT EXCEED THE TOTAL AMOUNT DUE TO PETDESK HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE TIME SUCH CLAIM AROSE.
Subscriber indemnifies, defends, and holds harmless PetDesk and its directors, officers, employees, consultants, agents, authorized representations and authorized personnel, from and against all liabilities, claims, actions, losses, costs, penalties, fines or forfeitures, expenses (including without limitation reasonable attorneys’ fees), and any damages resulting from, incident to, or in connection with any third-party claims alleging: (i) any negligent acts, omissions or misconduct by Subscriber; (ii) that Subscriber’s use of the Platform violates the rights of, or has otherwise damaged in any manner, a Client or another third party; or (iii) any breach of the Agreement by Subscriber or by any person using Subscriber’s account and/or passwords and the Platform. PetDesk reserves the right to assume the defense and control of any matter subject to indemnification set forth in this Section 9, in which event Subscriber shall cooperate with PetDesk in asserting any available defenses. PetDesk shall not settle or compromise any such claim without the consent of Subscriber, which consent shall not be unreasonably withheld, conditioned, or delayed.
11.1 Term. The Agreement shall become effective as of the effective date of the Service Agreement, for the applicable term specified in the Service Agreement.
11.2 Termination by Subscriber. Subscriber may cancel the Agreement in accordance with the terms set forth in the Service Agreement. Notwithstanding the foregoing, Subscriber remains liable for any outstanding payment obligations to PetDesk. PetDesk will work with Subscriber to process any termination of the Agreement in a timely manner.
11.3 Suspension by PetDesk. Notwithstanding anything to the contrary contained in the Agreement, PetDesk may temporarily suspend the Platform immediately, and without notice, if (i) the suspension is in accordance with an order, instruction, or request from a law enforcement agency, emergency service entity, or any other governmental entity having appropriate jurisdiction or (ii) if interruption of the Platform is necessary to prevent or protect against fraud or otherwise protect PetDesk or its licensors and operational service providers, or personnel, facilities, systems, or networks. The suspension shall be without prejudice to any other right or remedy PetDesk may have arising out of the Agreement. PetDesk’s rights under this Section 11.3 shall not limit any of PetDesk’s other rights or remedies, whether at law, in equity or under the Agreement.
11.4 Termination by PetDesk. If PetDesk determines, in its sole discretion, that Subscriber’s use of Platform is in violation of these Terms, the Service Agreement or any supplemental terms, then Subscriber’s service may be terminated at any time upon written notice to Subscriber. In the event of PetDesk’s termination of the Agreement for cause, Subscriber will pay PetDesk for all fees due, including, without limitation, any expenses and services provided up to the date of termination, within seven (7) calendar days of written notice of termination of the Agreement.
10.5 Survival. Sections 1, 2.1, 2.3, 3.2, 3.4, 3.5, 4, 5, 7.2 (but only the last two paragraphs), 7.3, 8, 9,10, 11.5, 12 and 13 shall survive any termination or expiration of the Agreement.
12. Dispute Resolution
It is PetDesk’s goal that the Platform meets Subscriber’s expectations and lives up to PetDesk’s promises to Subscriber. However, there may be instances when Subscriber feel that PetDesk has not fulfilled its obligations or Subscriber may have a different type of problem or dispute that needs special attention. In those instances, PetDesk is committed to working with Subscriber to reach a reasonable resolution that satisfies Subscriber; however, PetDesk can only do this if PetDesk knows about and understands Subscriber’s issue(s). Therefore, for any problem or dispute that Subscriber may have with PetDesk, Subscriber acknowledges and agrees that Subscriber will first give PetDesk an opportunity to resolve Subscriber’s problem (s) or dispute(s). In order to initiate this dispute resolution process, Subscriber must first send PetDesk a written description of Subscriber’s problem(s) or dispute(s) within thirty (30) days of the services being performed by sending an email to: email@example.com or by mail to PetDesk, 2044 1st Ave., Suite 200, San Diego, CA 92101. Subscriber then agrees to negotiate with PetDesk in good faith about Subscriber’s problem(s) or dispute(s) for at least sixty (60) days after PetDesk’s receipt of Subscriber’s written description of such problem(s) or dispute(s).
13.1 Entire Agreement. These Terms, the Service Agreement and other referenced material constitute the entire agreement between you and PetDesk with respect to the Platform and the Site. In the event of any conflict between these Terms and the terms of the Service Agreement, the Service Agreement shall govern. In the event any portion of the Agreement shall be held illegal, void, or ineffective, the remaining portions hereof shall remain in full force and effect and such illegal, void or ineffective provisions shall be construed, as nearly as possible, to reflect the intentions of the parties.
13.2 Confidentiality. Neither party shall disclose any Confidential Information (defined below) to any third party, except during the course of performing its obligations under the Agreement or as authorized by the prior written consent of the other party. Confidential Information does not include any information that: (i) is in the public domain; (ii) becomes publicly known after disclosure through no fault of the receiving party; (iii) is disclosed by a third party without confidentiality restrictions; or (iv) is independently developed without use of or reference to Confidential Information. “Confidential Information” means all (x) technological, operational, financial or business materials and information of a party exchanged with the other party during the course of negotiation and execution of the Agreement or pursuant to the performance of each party’s obligations under the Agreement that is marked as confidential or proprietary or otherwise derived from such materials and information, but specially excluding any Client Data or other data submitted by Subscriber to the Platform in the case of Subscriber’s Confidential Information, and (y) the terms and conditions of the Service Agreement.
13.3 Publicity. PetDesk may issue one or more press releases announcing and promoting Subscriber’s use of the Platform, and create various forms of collateral materials, including brochures, website content and related materials.
13.4 Notice. All notices required or permitted under the Agreement shall be in writing and shall be personally delivered or sent by commercial courier service with tracking capabilities or by registered or certified mail, postage prepaid, addressed in each case to the address provided in the Service Agreement, or such other address as may be specified in writing to the other party hereto.
13.5 Third Party Links. The Platform may permit you to link to other websites or resources on the internet. Links on the Platform to third party websites, if any, are provided only as a convenience to you. If you use these links, you will leave the Platform. The inclusion on another website of any link to the Platform does not imply control of, endorsement by, or affiliation with PetDesk. Your dealings with third parties through links to such third-party websites are solely between you and such third parties. You agree that PetDesk will not be responsible or liable for any content, goods or services provided on or through these outside websites or for your use or inability to use such websites. PetDesk expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services, that appear on any third-party website or application.
13.6 Governing Law and Venue. The Agreement shall be construed in accordance with the laws of the State of California without regard to any conflict of laws provisions. PetDesk and Subscriber shall submit to the jurisdiction of the state and federal courts located in San Diego, California.
13.7 Assignment. Subscriber shall not assign or transfer, in whole or in part, whether by merger, sale of substantially all of its assets, or change of control, its rights under the Agreement without the prior written approval of PetDesk. The Agreement shall be binding on and inure to the benefit of the parties, their successors, and permitted assigns and legal representatives. PetDesk may transfer or assign the Agreement or any right or obligation hereunder without the prior written consent of the Subscriber in its sole discretion.
13.8 Relationship. Subscriber understands, acknowledges and agrees that PetDesk is an independent third party business acting as a contractor, vendor, or operational service provider to Subscriber, and not as an employee, partner, dealer, licensee, franchisee, joint venturer, or agent to Subscriber.
13.9 No Waiver. The failure of either party to exercise its rights under the Agreement will not be construed as a waiver of such rights, nor will it in any way affect the validity of the Agreement.
13.10 Attorneys’ Fees. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
13.11 Contact. If you have any questions regarding these Terms, please contact us at firstname.lastname@example.org or by mail at PetDesk, 2044 1st Ave., Suite 200, San Diego, CA 92101.