Terms and Conditions of Use Agreement
This Terms and Conditions of Use Agreement (the "Agreement") is a binding agreement between Animalytix LLC ("Animalytix” or “ALX” or “we”) and the party which accesses or uses the Services and/or has otherwise entered into any agreement with Animalytix related to the access or use of the Services (“User” or “you”). This Agreement governs your access to and use of the applicable Services, as defined herein, to which you subscribe or license from Animalytix or otherwise access or use. The Addenda attached hereto contain additional terms for specific Services.
1. DEFINITIONS AND LICENSE:
1.1 License: Subject to the terms and conditions of this Agreement and any applicable Order Forms or Documentation (each as defined below), Animalytix hereby grants to User and its Authorized Users a non-exclusive, non-transferable, revocable, limited license (without the right to sublease or sublicense) to Access and Use the Services, during the Subscription Term for each applicable Service solely for User’s own internal business use. Any rights not expressly granted in this Agreement are expressly reserved by Animalytix or its licensors. User is responsible for all activity occurring under User’s Authorized User accounts. User shall notify Animalytix immediately of any unauthorized use of any password or account or any other known or suspected breach of security or this Agreement by User or its Authorized Users.
“Access” means access to the Services in the manner set forth in the applicable Order Form. If access is not defined in a particular Order Form, Access means access to the Services in an operating environment hosted by Animalytix (or its agents or subscribers; provided that any agent or subscriber access is limited to the access terms between Animalytix and such agent or subscriber and this Agreement).
“Addenda” means any addenda attached to this Agreement.
“Authorized Users” means: (i) User’s employees who are subject to binding confidentiality obligations applicable to the Services and Animalytix’s Confidential Information that are at least as restrictive as those set forth herein; and
(ii), solely to the extent permitted by ALX’s Order Form or Documentation, contractors or customers of User authorized by User to Access the Services who, prior to obtaining Access to the Services, have executed a non-disclosure agreement that protects the Services and Animalytix’s Confidential Information to the same extent as this Agreement. In each case of both (i) and (ii), to the extent required by Animalytix, each Authorized User must be registered in Animalytix’s database with a unique User ID and a unique password. “User ID” means a unique user identification credential used in combination with a unique password to Access the Services. Unless otherwise expressly set forth herein, all references to Users herein shall include and apply to Authorized Users.
“Documentation” means the then-current Animalytix-provided documentation or information relating to the features, functions, and use of the Services, in printed or electronic form (including on any Animalytix website or portal), as they may be modified from time to time by Animalytix.
“Fee-Based Services” means and includes those services which (i) Animalytix designates as fee-based services on your Order Form, as such fee-based services may be modified from time to time by Animalytix and/or (ii) any other services to which Animalytix, in its sole discretion, permits your Access or Use in exchange for payment of a fee to Animalytix or its agent from time to time.
“Free Services” means and includes those services which (i) Animalytix designates as no fee services on your Order Form, as such no fee-based services may be modified from time to time by Animalytix and/or (ii) any other services to which Animalytix, in its sole discretion, permits your Access or Use without an Order Form and without payment of any fee to Animalytix or its agent from time to time. Animalytix reserves the right to remove any services from the Free Services, in which case, at User’s option, Animalytix may allow User to undertake a fee-based subscription for Access to such services at Animalytix’s then-current fees for such services.
“Intellectual Property Rights” shall mean all worldwide intellectual property or proprietary rights, including, without limitation, patents, licenses, trademarks, service marks, trade names, inventions, trade secrets, and copyrights in any way related to or connected with the Services, including without limitation any intellectual property or proprietary rights in any way related to or connected with the origin, design, manufacture, programming, operation and/or service of the applicable documentation, services, software product, process, analysis or data.
“Order Form” means each written or electronic order form, request for access/User ID, statement of work or invoice executed or otherwise agreed to by User (including Access or Use of the Services as acceptance by User) for license to the Services, which may contain, without limitation, a list of the Services to which User subscribes, any limitations on the Services provided or the use thereof, the Subscription Term thereof and any applicable subscription fees and payment terms.
“Subscription Term” means the term during which Animalytix provides or allows you Use or Access to the Services.
“Services” means the Fee-Based Services and Free Services offered by Animalytix from time to time and to which the respective User is provided Use or Access in accordance with this Agreement.
“Use” means use of the Services as permitted specifically pursuant to this Agreement, including without limitation any restrictions in the Addenda, Documentation or an Order Form.
“User Data” means information provided, entered, uploaded, or made available for access or use by or with the Services by User or its Authorized Users.
2. USER OBLIGATIONS, UNDERSTANDINGS AND AGREEMENTS:
2.1 Permitted Use and Restrictions on Use – For Internal Business Use Only. User agrees that it will only Access and Use the Services in accordance with the terms of this Agreement and the Documentation, and only for its own internal business purposes. User agrees that it will not: (a) modify, disassemble, reverse engineer, decompile or make any attempt in any fashion to obtain the source code for or violate the security of the Services (or attempt to do any of the foregoing); (b) attempt to Access or Use portions of the Services, or its related systems, networks or databases, for which User has not acquired a license or right to Access or Use the Services, or (c) publish, display, distribute, copy or transfer the Services or any component thereof (including, without limitation, any publishing or display on User’s website). User acknowledges and agrees, and shall ensure that, only the Authorized Users shall be entitled to Access and/or Use the Services and that User will not authorize or allow any person other than an Authorized User to Access and/or Use the Services. User may not publish, distribute, display, copy, transfer or sell the Services to any third party or make any other commercial use of the Services other than for its internal business purposes. User shall not use the Services or any component of the Services for rental or in the operation of a service bureau, including without limitation, providing third party hosting, or third party application integration or application provider services. User shall not delete or remove any copyright notices, watermarks, identifying names, numbers or marks or other security mechanisms or devices contained in or on the Services or any component of the Services (including any reports) and shall take other reasonably necessary steps to protect the Services from disclosure, Access or Use other than as permitted by this Agreement. Any use of the Services by User shall include proper source attribution to Animalytix; provided that solely to the extent expressly permitted in an Order Form User shall be allowed to private label the Services.
2.2 User’s Obligation Related to Required Specifications and Backup. User, at its sole expense, shall be responsible for procuring and maintaining all hardware, equipment, software and internet connections which will be used by User and its Authorized Users to connect to and appropriately Access and Use the Services. User acknowledges and agrees that neither Animalytix nor its licensors exercise any control over, and they accept no responsibility for, the Internet connection services of User or its Authorized Users as supplied by third parties, such as Internet service providers. User shall provide viable back-up for its data, Internet connection services, and Internet service providers.
4. PROPRIETARY RIGHTS:
All Intellectual Property Rights in the Services (and all components thereof including without limitation any content, data, databases, platforms or publications) and in any ideas, know-how, feedback, recommendations, customer or User improvements or other information and programs developed by Animalytix in the course of providing any Services, including any enhancements or modifications made to the Services, are and shall at all times remain the property of Animalytix and its licensors, as applicable. By this Agreement, Animalytix only grants to you the right to Access and Use the Services as permitted by this Agreement during the Subscription Term, and you will delete and otherwise cease all use of any and all of our Services, data or databases at the conclusion of the Subscription Term. Each party’s name, logo, and associated product names are trademarks of the owning party, or its licensors, and no right or license is granted to use them except as expressly allowed in writing by the owning party; provided that to the extent that an Order Form permits User to private label the Services, User hereby grants to ALX a non-exclusive, transferable, sublicenseable right and license to use User’s name, logo, and associated product names are trademarks as needed to facilitate such private labeling.
“Confidential information” means all non-public business, financial, marketing, and technical information of Animalytix or its licensors, that is reasonably identified as confidential at the time of disclosure, or that a reasonable person would consider as confidential. User shall not disclose or use Animalytix’s Confidential Information except as permitted herein or without the prior written consent of Animalytix. Confidential Information is not information that (a) is or becomes public other than through a breach hereunder; (b) is disclosed without obligation of confidentiality by a person or entity not party to this Agreement; or (c) is required to be disclosed by any judicial or legal process. The terms of this Section 5 shall survive termination or expiration of the Agreement.
6.1 User hereby grants to Animalytix and its affiliates and licensors a worldwide, royalty-free, fully-paid-up, non-exclusive, irrevocable, perpetual, and transferable license to access and use User Data (including without limitation the right to create derivative works thereof) to (i) provide the Services to User, and (ii) analyze and/or aggregate User Data with other data in connection with the Services provided to User and to other customers or licensees or otherwise use User Data for or in connection with other products or services that may be offered by Animalytix from time to time; provided, however, that, except with respect to PIMS-Enabled Services (defined below), no data derived from User Data shall be provided to third parties (other than Authorized Users of such User and third parties that assist Animalytix in the provision of the Services hereunder) in such a fashion that would link User’s or User’s underlying customers’ or pets’ identity to any specific data. Notwithstanding the license to the User Data granted herein, User acknowledges and agrees that Animalytix’s or its affiliates’ use of User Data (and Animalytix’s or its affiliates’ modifications to such User Data or creation of derivatives thereof) shall in no way convey, transfer or expand upon the limited license to User to Access and Use the Services in accordance with this Agreement or any other agreement User may enter into with Animalytix. The license to use User Data shall survive the term and termination of this Agreement. USER REPRESENTS, WARRANTS AND COVENANTS THAT IT HAS ABIDED BY ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION ALL APPLICABLE PRIVACY LAWS, IN THE COLLECTION AND DISTRIBUTION OF THE USER DATA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, USER REPRESENTS AND WARRANTS THAT IT HAS OBTAINED ANY NECESSARY CONSENT OR AUTHORIZATION FROM ITS EMPLOYEES, CUSTOMERS OR ANY OTHER THIRD PARTIES TO COMPLY WITH ANY APPLICABLE LAWS (INCLUDING WITHOUT LIMITATION PRIVACY LAWS) OR CONTRACTUAL AGREEMENTS WITH SUCH EMPLOYEES, CUSTOMERS OR THIRD PARTIES IN ORDER TO PERMIT ANIMALYTIX AND ITS AFFILIATES, SUBCONTRACTORS AND LICENSORS TO ACCESS AND USE THE USER DATA AS SET FORTH IN THIS AGREEMENT AND RELATED TO THE PROVISION OF THE SERVICES HEREIN AND EXERCISE OF ANIMALYTIX’S AND ITS AFFILIATES’, SUBCONTRACTORS’ AND LICENSORS’ RIGHTS IN THIS AGREEMENT. User acknowledges and agrees that if it disallows Animalytix or its affiliates and licensors access to and use of User Data, such action may prevent Animalytix from providing all or a portion of the Services to User.
6.2 Animalytix and User each agree to comply with all applicable federal, state and local laws or regulations concerning the disclosure and/or use of personally identifying individual information. User Data shall be the sole property of User; however, any aggregated or de-identified data including User Data created by Animalytix will be the sole property of Animalytix and its licensors. In addition, User acknowledges and agrees that (a) Animalytix or its affiliates may from time to time independently obtain from third parties the same data that is included in the User Data, and (b) such independently obtained data is not subject to this Agreement and may be used by Animalytix or its affiliates not subject to any restrictions set forth herein. User represents and warrants to Animalytix that User possesses all necessary rights in User Data sufficient to permit User to provide such User Data to Animalytix for the purposes of and rights granted to Animalytix pursuant to this Agreement and the Services.
7.1 User Warranties. User warrants that it shall not post, use or provide, shall not allow to be posted, used or provided, and shall be solely responsible for the posting, using or providing of (a) any materials or data (including User Data) that infringe on or violate any intellectual property rights or privacy or other legal or proprietary rights of another; and (b) any libelous or defamatory material. User hereby warrants that it has the right to grant to Animalytix and its affiliates, subcontractors and licensors the license to access, receive and use the User Data in the manner and for the purposes set forth in this Agreement.
7.2 Disclaimer of Warranties. ANIMALYTIX AND ITS SUBCONTRACTORS AND LICENSORS DO NOT WARRANT UNINTERRUPTED, ERROR-FREE, OR TIMELY DELIVERY OF SERVICES OR GUARANTEE THE SECURITY OF THE SERVICES. ANIMALYTIX AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND THE SERVICES AND ALL COMPONENTS THEREOF ARE PROVIDED “AS IS”. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANIMALYTIX SPECIFICALLY DISCLAIMS FOR ITSELF AND ITS LICENSORS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY REPRESENTATIONS, WARRANTIES, OR ENDORSEMENTS REGARDING TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, USE OF, THE RESULT OF, OR PERFORMANCE, APPROPRIATENESS, ACCURACY, OMISSIONS, RELIABILITY, AVAILABILITY, COMPLETENESS, TIMELINESS, CURRENTNESS, OR CORRECTNESS OF THE SERVICES OR ANY DATA OR INFORMATION THEREIN. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
8. LIMITATION OF LIABILITY; NO VETERINARY OR MEDICAL ADVICE; RISK OF USE:
IN NO EVENT SHALL THE ANIMALYTIX INDEMNITEES’ (DEFINED BELOW) LIABILITY FOR ALL CLAIMS, SUITS AND DISPUTES ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY OF THE SERVICES EXCEED (IN THE AGGREGATE) THE GREATER OF: (I) THE AMOUNT OF FEES ACTUALLY PAID BY USER TO ANIMALYTIX HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF SUCH CLAIM, SUIT, OR DISPUTE OR (II) $100.00 U.S. DOLLARS. THE ANIMALYTIX INDEMNITEES SHALL NOT BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES HOWEVER CAUSED AND THIS LIMITATION SHALL APPLY TO ALL CAUSES OF ACTION, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. THIS LIMITATION SHALL APPLY EVEN IF THE ANIMALYTIX INDEMNITEES OR THEIR REPRESENTATIVES HAVE BEEN ADVISED OF OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION. NONE OF THE ANIMALYTIX INDEMNITEES IS ENGAGED IN THE PRACTICE OF VETERINARY MEDICINE. USER HEREBY ACKNOWLEDGES THAT THE INFORMATION AVAILABLE VIA THE SERVICES IS NO SUBSTITUTE FOR PROFESSIONAL MEDICAL OR VETERINARY ADVICE NOR IS IT INTENDED TO BE RELIED UPON BY ANY PERSON OR ENTITY FOR PURPOSES OF MEDICAL OR VETERINARY DIAGNOSIS OR TREATMENT. ANIMALYTIX AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL LIABILITY WITH REGARD TO CLAIMS BASED ON OR RELATING TO MEDICAL OR VETERINARY DIAGNOSIS OR TREATMENT. IF USER REQUIRES VETERINARY OR MEDICAL ADVICE, USER SHOULD SEEK THE SERVICES OF A COMPETENT VETERINARIAN OR MEDICAL PROFESSIONAL. THE ENTIRE RISK AS TO THE USE OF THE SERVICES AND DATA AND INFORMATION PRESENTED THEREIN IS ASSUMED BY THE USER. ACCORDINGLY, IN NO EVENT WILL THE ANIMALYTIX INDEMNITEES BE LIABLE FOR ANY LOSSES RESULTING FROM THE USE OR RELIANCE ON THE SERVICES OR ANY DATA OR INFORMATION CONTAINED THEREIN, WHETHER WITH RESPECT TO DRUG IDENTIFICATION, USES, PROCEDURES, DOSAGES, OR EQUIVALENCIES, OR BY REASON OF ANY MISSTATEMENT OR ERROR, NEGLIGENT OR OTHERWISE.
9. USER INDEMNIFICATION:
User shall indemnify, defend and hold harmless Animalytix and its licensors, affiliates, parents and subsidiaries and their respective employees, owners, officers, contractors, and agents (collectively the “Animalytix Indemnitees”) from and against any and all claims, demands, liabilities, judgments, awards, settlements, damages and costs including without limitation reasonable legal fees and expenses (collectively “Losses”) incurred by the Animalytix Indemnitees to the extent that such Losses arise out of or in connection with (i) a breach of any representation, warranty, obligation or covenant of User hereunder, (ii) the acts or omissions of User or Authorized Users or any of their employees or agents related to this Agreement or (iii) User’s or Authorized User’s Access, Use, disclosure or reproduction of the Services or Documentation.
10. REVISIONS AND UPDATES TO THE SERVICES:
10.1 From time to time, Animalytix, in its sole discretion, may provide updates or revisions to the Services to User. User acknowledges and agrees that the covenants, representations and warranties of Animalytix set forth in this Agreement shall only apply if User is using the most recent updated and/or revised version of the Services that has been made available to User. Further, Animalytix has no obligation to support the Services if User is not using the most recent updated and/or revised version of the Services.
10.2 User acknowledges that, from time to time, the Services may be disrupted, inaccessible or inoperable for various reasons, including, without limitation, equipment malfunctions, upgrades or modifications, or causes beyond the control of Animalytix, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion, changes to User’s computer system or practice information management system or other failures or events beyond Animalytix’s control.
11.1 Termination by Either Party For Breach. This Agreement (and the underlying Services) may be terminated immediately by either party upon written notice to the other party if the other party breaches a material term or condition of this Agreement and such breach remains uncorrected for thirty (30) days. Animalytix may suspend User and its Authorized Users’ Use of the Services, in whole or in part, during the cure period for any such breach until such breach is cured to ALX’s satisfaction.
11.2 Termination by Animalytix For Certain Circumstances. In the event of: (a) a change in control of User, whether by sale of assets, stock, or otherwise, (b) an attempt by User to assign this Agreement or any of its rights or obligations to a third party without Animalytix’s prior written consent or (c) Animalytix’s license or right to provide all or part of the Services terminates for any reason, Animalytix may terminate this Agreement (and any underlying Services, in whole or in part) immediately upon written notice to User. In such event, User shall be entitled to a refund of any unearned subscription fees paid by User for Services which have not been provided to User as of the date of termination of such Services.
11.3 Termination By Either Party in General. This Agreement (and the underlying Services) may be terminated immediately by either party upon written notice if: (a) the other party becomes insolvent, makes a general assignment for the benefit of its creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceeding under bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise; or (b) the business of the other party terminates for any reason.
11.4 Effect of Termination. Upon the effective date of termination of this Agreement (or the applicable Services), or expiration of the Subscription Term hereunder for any applicable Services, all rights granted to User (and the Authorized Users) under this Agreement for the terminated Services will immediately terminate and revert to Animalytix and its licensors, as applicable, and User shall cease using the Services and any component thereof. In addition to any other amounts for which User may be liable to Animalytix hereunder, upon any expiration or termination of this Agreement, User shall remain liable for and pay when due all subscription fees due to Animalytix. For clarification, User acknowledges and agrees that upon termination of any Services, Animalytix shall not have any obligation to provide access to any data included within the Services prior to termination or expiration of the Services. The following obligations will survive termination of this Agreement for any reason: (a) User’s obligations to make payments of all amounts due; (b) all obligations of User and its Authorized Users as described in Section 2; (c) Sections 4, 5, 6, 7, 8, 9, 11.4, 12 and 13, and (d) all obligations and provisions in any Addenda.
12. FORCE MAJEURE:
If either party is unable to perform any of its obligations under this Agreement (excluding any of User ’s payment obligations hereunder which may not be suspended by a Force Majeure Event) or to enjoy any of its benefits because of a natural disaster, an action, event or circumstance that could not be reasonably anticipated by such party, or decree of governmental bodies and the same is not the fault of the affected party (hereinafter referred to as a “Force Majeure Event”), the party who has been so affected shall give notice to the other party and shall take reasonable steps to resume performance. Force Majeure Events shall also include, without limitation, fires, explosions, earthquakes, floods; strikes, work stoppages or other industrial disputes; accidents; riots or civil disturbances; acts of civil or military authorities; acts of terrorism; epidemics, pandemics, outbreaks or quarantines; denial of service attacks; equipment malfunctions, upgrades or modifications, or causes beyond the control of Animalytix, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion, modifications to User’s computer system or practice information management system; and delays, acts or omissions by carriers, suppliers, licensors or other third parties or materials shortages. Upon receipt of such notice, all obligations under this Agreement, other than payment obligations, affected by such Force Majeure Event shall be immediately suspended.
13. GENERAL PROVISIONS:
Last updated March 26, 2020
Additional Terms and Conditions For Specific Services
In addition to the terms and provisions of the Agreement, the below additional terms and provisions shall apply to the applicable Services noted below. To the extent of any conflict between this Addendum and the Agreement, the provision which is most favorable or protective of Animalytix shall control.
User acknowledges, understands and agrees that the automated binder created for User pursuant to the COMPAS Services will only include those products in the COMPAS database which are applicable to User according to data provided to Animalytix by its data participants or User. User is solely responsible to review such products and amend or update them for User and User’s business operations. Further, User acknowledges, understands and agrees that the COMPAS database does not include all products which require a safety data sheet under applicable laws and regulations. This service is for informational purposes only. If you believe that an SDS is or may be required for any product not in Animalytix’s database, please reach out to your contact at the manufacturer and/or consult your regulatory counsel.
The Coupon Drawer
Client acknowledges, understands and agrees that the use of any coupon or offering provided pursuant to the Coupon Drawer Services are subject to any terms, conditions and restrictions of the applicable manufacturer. Animalytix is solely providing a portal for the receipt and distribution of the coupons and makes no representations or warranties about the validity or use thereof. Any inquiries should be directed to the manufacturer.
User acknowledges that, except for the Services provided by Animalytix herein, the applicable rewards program provider (or its participating vendors) shall be solely responsible for the administration of its rewards program and any incentives, savings or rebates offered by such provider (or its participating vendors), including the provision of payments, savings or credits to the rewards program participants and handling any particular disputes or questions related to the rewards program.