Effective Date: October 7, 2022
These Terms and Conditions to the Service Agreement (these “Terms”) govern Subscriber’s use of the services made available by PetDesk, LLC (“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.
These Terms apply to PetDesk’s proprietary veterinary patient engagement software platform (the “Platform”) and PetDesk’s client-facing mobile application(s) (“App(s)”). The Platform is accessible at www.petdesk.com and dashboard.petdesk.com (collectively, the “Site”). Our Privacy Policy, Terms of Service (for Clients) and all other operating policies and procedures that may be published and updated from time to time on the Site by PetDesk are hereby incorporated into these Terms by reference. PetDesk may, from time to time, in its discretion, modify these Terms by posting updated terms on its website. Subscribers will receive a notification through the Platform when these Terms are updated.
1. Definitions.
1.1. “Service Agreement” means that certain PetDesk Service Agreement or PetDesk Corporate Service Agreement, as the case may be, in which Subscriber (defined below) or Subscriber’s Corporate Parent, as applicable, has purchased a license to use one or more of the Services, including certain Services on the Platform. The PetDesk Service Agreement provides the specific Services elected by Subscriber, the set-up, installation and subscription fees and other fees, as applicable, for the Services, and the term of the license to the Platform and the Services.
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.
1.5. “Corporate Parent” means the entity identified as the “Parent” or “Corporate Parent” in a Services Agreement or Corporate Services Agreement that owns or controls the operations of one or more veterinary hospitals and practice locations.
1.6. “Services” means the functionalities offered via the Platform and such other support and services that PetDesk agrees to provide to Subscriber and Subscriber agrees to purchase as specifically identified in the Services Agreement.
1.7. “Subscriber” as used herein, includes the subscriber identified in a Service Agreement and, with respect to a Corporate Service Agreement, Subscriber shall mean the Corporate Parent and each veterinary hospital or practice location owned by the Corporate Parent that has agreed to be bound by these Terms or used the Services pursuant to a Corporate Service Agreement.
2. Payment.
2.1. Fees. All fee and payment terms concerning a Subscriber’s access to the Platform and the Services are set forth in the applicable Service Agreement. If Subscriber discovers an error in fees invoiced, Subscriber must contact PetDesk no later than forty-five (45) calendar days after the due 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; provided, however, PetDesk shall charge for any increases in postage cost in connection with sending postcards on behalf of Subscriber. 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.
2.4. Referral Fees. PetDesk may receive referral fees for any third-party goods or services that are sold through the Platform, the Site, or the Services. In some cases, it may also pay referral fees to Subscribers for sales to their Clients that are made through the Platform or the Services.
3. Access to the PetDesk Site and Platform.
3.1. License Grant. PetDesk hereby grants Subscriber a limited, non-exclusive, nontransferable right to access and use the Platform, the Site, and the Services 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. PetDesk retains any and all intellectual property and proprietary rights throughout the world, including patents, trade secrets, copyrights and trademarks (collectively, “Intellectual Property Rights”) covering or embodied in the Platform, the Site, or the Services and all modifications, improvements, derivative works and the like (collectively, “Improvements”) to the Platform, the Site, and the Services. In the event that Subscriber acquires any rights in or to any Intellectual Property Rights covering or embodying the Platform, the Site, the Services or Improvements to the Platform, the Site, or the Services, Subscriber shall assign, and hereby assigns, all right, title and interest therein to PetDesk. In any event, PetDesk shall have and is hereby granted the perpetual, irrevocable, non-terminal, worldwide, royalty-free right to integrate and use all Improvements and associated Intellectual Property Rights in its products and services without restriction. 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. Product Descriptions. PetDesk may offer and promote third-party goods or services through the Platform, the Site, or the Services, including but not limited to pet insurance, pet foods, and other products. The descriptions, specifications, ingredient lists, pictures, and other content and information displayed on or with those goods or services are provided by the third-party manufacturer or service provider, and not by PetDesk. PetDesk does not represent or guarantee that any descriptions, specifications, ingredient lists, pictures, or other information about those third-party goods and services are accurate, complete, reliable, current, or error-free. PetDesk also does not represent or guaranty that any third-party goods or services are merchantable, fit for a particular purpose, of any particular quality or the like. If a Subscriber or Client is dissatisfied with any matter related to any purchases of third-party goods or services, any remedy must be handled with the applicable third-party manufacturer or service provider.
3.3. Third-Party Licensors. The Platform or the Site may operate, interface or be delivered with software or other technology or services that are 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 services 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 or the Site; 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 or the Site. 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 services provided by Third Party Licensors (including, without limitation, any text messaging short codes), whether during or after the term of the Agreement.
3.4. 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, the Site, or the Services.
3.5. Additional Restrictions. Subscriber agrees not to do any of the following: (i) reverse engineer, decompile, disassemble, translate, modify, alter or otherwise change the Platform, the Site, or any part thereof; (ii) attempt to derive the source code or structure of the Platform, the Site, or any part thereof; (iii) alter or remove from the Platform or the Site any trademarks, trade names, logos, patent or copyright notices, or other notices or markings owned by or pertaining to PetDesk or its licensors; or (iv) distribute, resell, sublicense or otherwise transfer access to the Platform, the Site, or Services to others. If PetDesk determines, in its sole discretion, that Subscriber’s use of the Platform, the Site, or the Services 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.
3.6. Feedback. Subscriber is under no obligation to provide PetDesk with any feedback, corrections or suggestions regarding the Platform, the Site, or the Services. In the event that Subscriber provides any feedback to PetDesk regarding the Platform, the Site, or the Services, 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, use, and otherwise exploit all such Feedback in PetDesk’s products and services, including the Platform or the Site, without restriction or any accounting to Subscriber.
3.7. 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, the Site, and the Services, 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, the Site, and the Services 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 or the Site 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. Text Messages from PetDesk.
4.1. Text Notification Feature. For the Platform and many other Services, PetDesk offers a feature where it will send text message notifications to Clients, Subscribers, and other users with updates on promotional offers, important account information, changes to the PetDesk website or these Terms, or other similar information.
4.1.1. After subscribing to any Service with the text notification feature, you will receive a text message from 47356 confirming that you opted in to receive text messages from PetDesk.
4.1.2. Text “STOP” to 47356 at any time turn off the text notification feature.
4.1.3. Text “HELP” to 47356 for instructions on how to use or deactivate the text notification feature.
4.1.4. Message frequency may vary, and message and data rates may apply.
4.2. Participating Carriers. As of the most recent update of these terms, the carriers supporting this service include the following: AT&T, Verizon Wireless, Sprint, T-Mobile, U.S. Cellular, Boost Mobile, MetroPCS, Virgin Mobile, Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central, IL (ECIT), Cellular One of Northeast Pennsylvania, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless). This list is subject to change, and carriers are not liable for any delayed or undelivered messages.
4.3. Support for Text-Notification Feature. For any questions regarding the text-notification feature, or to reactivate the text-notification feature after it was previously turned off, please contact our support team at support@petdesk.com. For additional information on our privacy practices, please read our privacy policy.
5. Intellectual Property.
5.1. Materials. The Platform, the Site, and the Services, 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 or on the Site (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 during the term of the Agreement solely pursuant to Subscriber’s use of the Platform or the Site.
5.2. Restrictions on Use of Materials. No Materials from the Platform, the Site, or the Services 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. Any use or modification of any Materials other than as expressly permitted by the Agreement must be pre-approved by PetDesk or its Third-Party Licensor in writing, or it will constitute a violation of the intellectual property rights of PetDesk or its Third-Party Licensor(s). All design rights, databases and compilation and other intellectual property rights associated with the Services, in each case whether registered or unregistered, and related goodwill, are proprietary to PetDesk.
5.3. License to Use Subscriber Intellectual Property. 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 PetDesk to the extent necessary to render the Services, including for purposes of creating “white label” messages to be sent by Subscriber to its Clients through 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.
6. Medical Information and Services.
6.1. PetDesk Does Not Provide Medical Advice. PetDesk is not a licensed veterinary practice. Any articles, opinions, advice, or information provided or published by PetDesk through the Site, the Platform, or on social media, including within the descriptions of third-party goods or services available through the PetDesk marketplace, is for informational and educational purposes only and is not intended to diagnose, prevent, treat, or cure any pet diseases, conditions, or other health-related issues. For any medical or health-related advice concerning the care and treatment of a pet or other animal, please contact a veterinarian or local animal hospital. No statements made by or on behalf of PetDesk have been evaluated by the U.S. Food and Drug Administration or any other regulatory body.
6.2. Telemedicine Guidelines. 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 Platform or Services to provide telemedicine to Clients, 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 Subscriber’s use of telemedicine and does not endorse or support advice or diagnosis provided between a Subscriber and a Client. Subscribers will be liable and responsible for all medical advice, diagnosis or professional opinions provided to Clients.
6.2.1. Telemedicine. 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 or videos), live video or chat, provided by a third-party partner/vendor that virtually connects Subscriber to the Client.
6.2.2. Third Party Providers. Access to third-party telemedicine companies may be made available through the PetDesk App at the request of the Subscriber. PetDesk does not support, endorse or have an affiliation with a third-party telemedicine company, unless expressly written in the Agreement.
7. Client Data.
7.1 License Grant to Client Data. Subscriber owns all Client Data it uploads to the Platform during the term of the Agreement. Subject to the foregoing, Subscriber hereby 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 its Clients, for 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 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, any other data on the Platform, or the Platform itself.
7.2 Subscriber’s Client Data Responsibilities. Subscriber has the sole responsibility for the input, accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership, consent 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.
7.3 User-Submitted Content. PetDesk allows or may allow users of the Site or the Platform (including Subscribers) to submit and publish text, photographs, and other content (together, “User-Submitted Content”) through the Platform, the Site, social media, or other channels. Each user is solely responsible for its own User-Submitted Content and will assume all risks associated with use and publication of such User-Submitted Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of User-Submitted Content that makes the user or any third party personally identifiable. By submitting User-Submitted Content to PetDesk, you represent and warrant that:
7.3.1. You own, or have the necessary rights to use, publish, distribute, and license the use, publication, and distribution of such User-Submitted Content.
7.3.2. Your User-Submitted Content does not and will not violate any third-party rights, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right.
7.3.3. Your User-Submitted Content will not violate any law, regulation, or third-party obligations or include any content or information that is unlawful, harassing, abusive, tortious, threatening, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, pornographic, obscene, or otherwise objectionable in PetDesk’s sole discretion.
7.3.4. PetDesk will have an automatic, irrevocable, nonexclusive, royalty-free, worldwide, sublicensable right and license to use any User-Submitted Content—in whole or in part—including by reproducing, distributing, publicly displaying, publicly performing, or preparing derivative works based on User-Submitted Content on the Platform, the Site, social media, or marketing and promotional materials.
7.3.5. You irrevocably waive any right of publicity, moral rights, or attribution rights with respect to your User-Submitted Content.
7.3.6. Your User-Submitted Content does not include any confidential or proprietary information.
7.3.7. You will not state or imply that your User-Submitted Content is in any way provided, sponsored, or approved by PetDesk.
PetDesk disclaims any responsibility for User-Submitted Content, including any obligation to back up or maintain User-Submitted Content, and it reserves the right to delete User-Submitted Content at any time and for any reason. PetDesk also reserves the right to report any suspected unlawful activity to appropriate law enforcement agencies as it sees fit.
8. Representations and Warranties.
8.1. Subscriber’s Representations and Warranties. Subscriber represents at all times during the term of the Service Agreement that:
8.1.1. it has the legal authority to enter into these Terms and the Service Agreement;
8.1.2. no approval or other action by any governmental authority or agency, or any other individual or entity, is required in connection herewith;
8.1.3. 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.
8.1.4. it is solely responsible for all actions taken by Subscriber’s personnel on the Platform;
8.1.5. 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;
8.1.6. 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;
8.1.7. it will not upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data via the Platform, the Site, or the Services;
8.1.8. it will not send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise via the Platform, the Site, or the Services;
8.1.9. it will not harvest, collect, gather or assemble information or data regarding other users of the Platform, the Site, or the Services, including e-mail addresses, without their consent;
8.1.10. it will not interfere with or disrupt servers or networks connected to the Platform or Site or otherwise violate the regulations, policies or procedures of such networks;
8.1.11. it will not attempt to gain unauthorized access to the Platform, the Site, or any other computer systems or networks connected to or used together with the Platform or the Site, through password mining or other means;
8.1.12. it will not harass or interfere with another user’s use and enjoyment of the Platform or the Site;
8.1.13. it will send messages to Clients on or through the Platform only in a professional and courteous manner;
8.1.14. it has obtained all necessary consents from its Clients for PetDesk to send communications to Clients on behalf of Subscriber through the Platform;
8.1.15. 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 6;
8.1.16. all of its Client Personal Information is correct and complete to the best of Subscriber’s knowledge; and
8.1.17. 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.
8.2. PetDesk’s Representations and Warranties. PetDesk represents and warrants during the term of the Service Agreement that:
8.2.1. 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;
8.2.2. it will secure and use Subscriber’s Client Personal Information in a reasonable manner, consistent with the Privacy Policy to the extent applicable;
8.2.3. 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
8.2.4. it will use reasonable efforts to render the Services pursuant to the Agreement in a professional and workmanlike manner.
8.2.5. ANY CLAIM FOR BREACH OF THE FOREGOING WARRANTY UNDER 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.
8.2.6. 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.
8.3. 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 the 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.
9. Disclaimers.
9.1. Disclaimer of Warranties: EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THE AGREEMENT, ALL SERVICES, THE SITE, 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 SITE, 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.
9.2. Content of Messages. PetDesk does not review, screen, or otherwise monitor the content of messages sent by Subscribers to their Clients. It merely transmits the messages, without being aware of their content, based on the good-faith belief that Subscribers are only using the Platform and Services in accordance with the Agreement. Each Subscriber is solely responsible for the contents of all messages initiated by Subscriber through the Platform. PetDesk is, under no circumstances, responsible for the contents and/or accuracy of Subscriber’s messages to its Clients, it will not be liable for any misuse of the Platform or the Services by Subscriber, and it is not responsible for the views and opinions contained in any of Subscriber’s messages.
9.3. 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.
9.4. 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 subject to 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.
10. Limitations on Liability.
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.
11. Indemnification.
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 10, 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.
12. Termination.
12.1. Term. The Agreement shall become effective as of the effective date of the Service Agreement, for the applicable term specified in the Service Agreement.
12.2. Termination by Subscriber. Subscriber may terminate 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.
12.3. 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.
12.4. Termination by PetDesk. If PetDesk determines, in its sole discretion, that Subscriber’s use of the Platform, the Site, or the Services 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.
12.5. Survival. Sections 1, 2.1, 2.3, 3.3, 3.5, 3.6, 3.7, 4.2, 6, 7.2.5, 7.2.6, 7.3, 8, 9, 10, 11.5, 12 and 13 shall survive any termination or expiration of the Agreement.
13. Dispute Resolution
It is PetDesk’s goal that the Platform, the Site, and the Services will meet or exceed Subscriber’s expectations. 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: support@petdesk.com or by mail to PetDesk, 237 A Street, PMB 79094, 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).
14. Miscellaneous.
14.1. 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.
14.2. 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 specifically 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.
14.3. Publicity. PetDesk may issue one or more press releases announcing and promoting Subscriber’s use of the Platform and may create various forms of collateral materials, including brochures, website content and related materials.
14.4. 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.
14.5. Third-Party Links. The Platform or the Site may permit you to link to other websites or resources on the internet. Links on the Platform or the Site 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 on any such third-party websites or applications, and for any products and services, that appear on any third-party websites or applications.
14.6. 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.
14.7. 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.
14.8. 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 of Subscriber.
14.9. 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.
14.10. Attorneys’ Fees. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
14.11. Contact. If you have any questions regarding these Terms, please contact us at support@petdesk.com or by mail at PetDesk, 237 A Street, PMB 79094, San Diego, CA 92101-4003.
