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Last updated: 2020.3.1
ALLYDVM and SecureDVM Services
Practice Services Agreement
ALLYDVM, Inc. (“ALLYDVM”) and its affiliate SecureDVM, LLC (“SecureDVM”) offer to veterinary industry participants a range of software and other services (“Services”), as defined below. These Terms and Conditions constitute a legally binding agreement (this “Agreement”) between ALLYDVM, on behalf of itself and SecureDVM, and the veterinary practice or veterinary industry participant or service provider accepting this Agreement in the manner indicated below (“Practice”). This Agreement governs Practice’s use of the Services, as well as all related websites, applications, software, and tools. Applicable portions of this Agreement, as further described in Section 14, also govern the interaction between Practice, on the one hand, and ALLYDVM and SecureDVM, on the other hand, where ALLYDVM and/or SecureDVM are providing Services to a third party that has a business relationship with Practice or to Practice in connection with its relationship with such third party and, in either case, where Practice or such third party (with Practice’s consent or pursuant to a separate agreement) have instructed ALLYDVM and/or SecureDVM to interact with Practice (to perform data-synchronization Services, for example).
BY CONTINUING TO USE THE SERVICES AFTER RECEIVING THIS AGREEMENT, PRACTICE IS ACCEPTING ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF ITSELF AND ANY OF ITS AFFILIATES THAT USE THE SERVICES. IF PRACTICE IS A COMPANY OR OTHER LEGAL ENTITY AND YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF PRACTICE, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND PRACTICE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
ALLYDVM may modify this Agreement and these terms and conditions at any time by providing notice of such modification to Practice, including by sending an email to the email address Practice provided to ALLYDVM or by posting notice within the ALLYDVM portal or user interface, and such modified terms will be incorporated into this Agreement and apply to and govern ALLYDVM’s provision, and Practice’s receipt and use, of the Services. Practice’s continued use of any ALLYDVM Services after receipt of notice of modified terms constitutes Practice’s agreement and consent to such modified terms.
As used in this Agreement:
“Ancillary Software” means any software agent or tool that ALLYDVM makes available directly or indirectly to Practice or a User for purposes of facilitating access to, operation of, and/or use with, the Services.
“Data Protection Laws” means all laws, rules and regulations relating to the processing and security of Personal Data, including the Gramm-Leach-Bliley Act.
“Documentation” means any specifications, instructions, descriptions and other similar materials ALLYDVM may publish or otherwise make generally available to its Practice customers from time to time in connection with Ancillary Software or the Services.
“EULA” means the end-user terms and conditions or similar agreement provided by or on behalf of ALLYDVM to Users who access and use certain elements of the Services (e.g., ALLYDVM’s Patient Portal and mobile applications) in connection with Practice’s access and use of the Services under this Agreement and the applicable Order Form.
“Identifying Information” means any data or information that is included in the Practice Content that identifies, or could reasonably identify, Practice or a User, including, but not limited to, name, contact information (e.g., address, telephone number or e-mail address) or tax number, but does not include any Practice Content or other information that has been made anonymous or aggregated so that it can no longer be used to identify Practice or a User.
“Order Form” means the ordering document substantially in the form approved by ALLYDVM and completed and submitted by Practice to, and accepted by, ALLYDVM, SecureDVM or a third-party distributor, by which Practice orders Services.
“Personal Information” means any information that is included in the Practice Content that identifies an actual and specific natural person including, but not limited to, name, contact information (e.g., address, telephone number or e-mail address), social security number, date of birth, or any other information included in the definitions of “personal information”, “personally identifiable information” or similar definitions under any Data Protection Laws but does not include any Practice Content or other information that has been made anonymous or aggregated so that it can no longer be used to identify a specific, natural person.
“Practice Content” means all text, files, images, graphics, illustrations, information, records, audio, video, photographs, and other content and material, in any format, as well as all data and information, including Personal Information, that are (i) provided by or on behalf of Practice or End Users, (ii) submitted to, or accessed, processed or stored by the Services; or (iii) located on Practice’s practice information management system or other systems and accessed, extracted, pulled, processed or stored by or in connection with the Services or the Ancillary Software.
“Services” means, collectively, the ALLYDVM and SecureDVM offerings identified in the applicable Order Form or as requested, accessed, authorized, directed or used by Practice or a third party (with Practice’s consent or pursuant to a separate agreement between Practice and such third party), which may include, as applicable, calendaring, communications, data synchronization, data mapping, hosting and patient portal services, access to and use of the Ancillary Software (if applicable), data transfer, marketplace or synchronization services, marketing campaigns, including targeted marketing via email, text, postcard and/or other mediums, as well as consulting, implementation, and other related services.
“Services Period” means the subscription period (including renewals) for which Practice has ordered the Services as specified in the applicable Order Form or as otherwise purchased by Practice.
“Third-Party Content” means all text, files, images, graphics, illustrations, information, records, data, audio, video, photographs, and other content and material, in any format, that are obtained or derived from third-party sources outside of ALLYDVM and Practice and made available to Practice through, within, or in conjunction with Practice’s and User’s use of the Services. Examples of Third-Party Content include data feeds from social network services, rss feeds, and blog posts.
“Users” means those employees, contractors, and end users, as applicable, authorized by Practice or on Practice’s behalf to use the Services in accordance with this Agreement. Practice’s clients authorized by Practice to use applicable elements of the Services to interact with Practice will be considered “Users” under this Agreement and the Order Form, subject to such Users’ acceptance of the EULA, if any.
2. License Grants
a. Subject to Practice’s compliance with all of the terms and conditions of this Agreement and the payment of all applicable fees hereunder and under the applicable Order Form, ALLYDVM grants to Practice a limited, personal, revocable, non-exclusive, non-transferrable license to use and access, during the Services Period, the Services identified on such Order Form or otherwise purchased by Practice, solely as set forth in this Agreement and in accordance with the Documentation, if any, and solely for Practice’s internal operations. Practice may allow Users to use and access the Services for the purpose of exercising the foregoing license on Practice’s behalf or, in the case of Users who are Practice clients, for the purpose of interacting with Practice using the functionality made available to Users by ALLYDVM for such purpose. Practice is responsible for Users’ compliance with this Agreement and the EULA.
b. Without limiting any other provision of this Agreement, the foregoing license is subject to the restrictions specified below. If the Services include access to and use of Ancillary Software, such access and use may be subject to additional license terms that accompany the Ancillary Software. No other use of or access to the Services is permitted.
c. ALLYDVM is committed to protecting the privacy and security of Personal Information and Identifying Information. AllyDVM believes that such information belongs to Practices and Users and should be used for their benefit. As such, ALLYDVM will not, without the consent of Practice or the applicable User, sell, rent or disclose Personal Information or Identifying Information to any unrelated third parties or use Personal Information for any purpose except, in each case, as reasonably necessary to provide or support the Services and any other services requested or authorized by Practice or the User. Additionally, ALLYDVM will not place any restrictions or limitations on Practice’s ability to use the Practice Content. Subject to the foregoing limitations on ALLYDVM’s handling and use of Personal Information and Identifying Information, Practice does hereby grant to ALLYDVM and its affiliates a perpetual, irrevocable, nonexclusive, transferable, sublicensable, royalty-free, worldwide license and right to extract, synchronize, store, use, process, reproduce, modify, perform, display, copy, distribute, provide, license and create derivative works of Practice Content, directly or indirectly, for any lawful purpose. Practice acknowledges that ALLYDVM may use third party service providers to, among other things, integrate with and access, extract, modify and writeback Practice Content to and from the practice information management systems (PIMS). Practice grants ALLYDVM and ALLYDVM’s third party service providers permission to access, extract, modify and writeback Practice Content to and from the PIMS utilized by Practice for the foregoing purposes.
3. Ownership and Restrictions
a. Practice retains all ownership and intellectual property rights in Practice Content, subject to the license granted by Practice to ALLYDVM above. The Services, Ancillary Software, Service Analyses (defined below) and their entire contents (excluding Practice Content), features and functionality are owned by ALLYDVM and its licensors or other providers of applicable materials and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws and treaties. No right, title or interest in or to any part of the Service is transferred to Practice, and all rights not expressly granted to Practice in this Agreement are reserved by ALLYDVM and its licensors.
b. Practice shall not at any time do, or cause or permit any User or third party to do, any of the following:
(1) make any part of the Services or resulting materials (excluding Practice Content) available in any manner to any third party for use in the third party’s business operations;
(2) modify or make derivative works of, disassemble, reverse engineer, reproduce, distribute, republish or download any part of the Services;
(3) access or use the Services in order to build or support, or assist a third party in building or supporting, products or Services competitive to ALLYDVM;
(4) use the Services in connection with any form of competitive research;
(5) perform or disclose any security testing of the Services or associated infrastructure, including: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing;
(6) license, sell, rent, lease, transfer, assign, distribute, host, outsource, permit timesharing or service bureau use, or otherwise commercially exploit or make available the Services, Ancillary Software, or ALLYDVM materials to any third party, other than as expressly permitted under this Agreement;
(7) create links to the Services not approved by the Service Specifications or frame or mirror any aspects of the Services; or
(8) use the Services, Ancillary Software or any other materials provided by or on behalf of ALLYDVM in any manner inconsistent with the Acceptable Use Policy set forth below or in violation of applicable law.
4. Fees and Taxes
a. Practice shall pay all fixed-rate recurring monthly or annual fees as agreed with ALLYDVM or the third-party distributor of the Services through which Practice agreed to use the Services, as set forth in the Order Form or other purchase mechanism made available by or on behalf of ALLYDVM or such third-party distributor. Specific payment terms are defined in the Order Form or provided with such other purchase mechanism. Fees for the Services are generally categorized into two groups: fixed-rate and variable.
b. Fixed-rate fees include things like recurring monthly or annual subscription fees, which are generally due and payable in advance on the first day of the pay period, whether monthly or annually. Practice hereby authorizes ALLYDVM or Practice’s third-party distributor, as applicable, to automatically debit when payment is due the credit or debit card provided by Practice through the signup process or through the Services and hereby states that the foregoing authorization also serves as a written agreement to engage in a recurring transaction in accordance with all applicable rules and terms placed upon merchants by credit card companies to govern the handling of recurring transactions. Practice may opt out of this recurring transaction by terminating Practice’s subscription for the Services in accordance with this Agreement.
c. Variable fees include things like fees for postcards or messaging charges, which shall be invoiced or charged as incurred. To the extent such fees apply, Practice agrees to make payment promptly through the ALLYDVM electronic payment portal, by check, or, in the case of payment to a third-party distributor, as agreed with that third-party distributor. Without limitation of any other rights or remedies available to ALLYDVM at law or in equity, Practice agrees that failure to pay any fees when due may result in penalties, interest charges (at the lesser of 1% per month, 12% per annum and the highest amount permitted by law), and/or termination of the Services.
d. ALLYDVM or Practice’s third-party distributor may change the prices of the Services. In the event that a price change results in a price increase, Practice will be notified at least 30 days in advance of the change, with the exception of postage or postcard cost increases, which may be passed through to Practice without notification. Continued use of the Services after notification shall constitute Practice’s acceptance of such price increases.
e. Practice will reimburse ALLYDVM for any data access or connection fees or other fees or charges imposed on ALLYDVM or its application program interface (API), data extractor or sync application in respect of ALLYDVM’s access of or connection to a PIMS or the data stored on or processed through a PIMS in connection with the provision of the Services.
f. Practice will pay any sales, value-added, or other similar taxes imposed by applicable law that ALLYDVM or a third-party distributor must pay based on Practice’s order, except for taxes based on ALLYDVM’s income or the third-party distributor’s income. Fees for Services listed on ALLYDVM’s website, a third-party distributor’s website, or other promotional materials may be exclusive of taxes.
5. Term and Termination; Suspension
a. Minimum-term contracts are not required by ALLYDVM, but they may be required by a third-party distributor or made available as an option by ALLYDVM or a third-party distributor.
b. The term for subscription-based Services will commence upon enablement of Practice’s access to the Services by ALLYDVM or the third-party distributor. The commencement and duration of the term for any other Services shall be as specified on the applicable Order Form. Subject to the process described in this Section 5(b), either ALLYDVM or Practice may terminate Practice’s subscription for the subscription-based Services with or without cause by providing written notice to the other party. ALLYDVM or, when applicable, a third-party distributor will provide written notice to Practice’s email address on record with ALLYDVM. Practice may send notice to firstname.lastname@example.org or, when applicable, the third-party distributor’s designated email address and should confirm receipt of such notice by calling 855-255-9386 (855-ALLY-DVM) or, when applicable, the third-party distributor’s designated phone number to speak with a customer success representative if a reply to Practice’s written notice is not received within three business days. Except as otherwise set forth in the applicable Order Form, the effective date of any such termination shall be (i) the end of Practice’s next full billing cycle, in the case of monthly subscriptions, or (ii) the end of the then-current subscription period, in the case of annual subscriptions; provided, however, that in the event of termination by ALLYDVM for Practice’s breach of this Agreement, termination shall be effective immediately. In the event Practice terminates use of the Services, Practice agrees that deposits and fees for pre-paid services, if any, will not be returned and that pro-rated refunds will not be provided unless otherwise agreed in writing in ALLYDVM’s sole discretion. Upon any termination of the Services, Practice’s license to access and use the Services shall terminate, provided that the license and rights granted in Section 2(c) shall survive any termination. Certain ALLYDVM software, including the data synchronization tool, may not be uninstalled automatically upon termination of Services and such software may continue to operate and sync and map data after such termination unless Practice uninstalls, and/or specifically requests ALLYDVM to uninstall, such software.
c. ALLYDVM may suspend Practice’s or any User’s password, account, and access to or use of the Services if (i) Practice or any User violates any provision of this Agreement or the EULA, as applicable, or (ii) if in ALLYDVM’s sole judgment, the security or functionality of the Services or any component thereof are or may be threatened or compromised. In the case of clause (ii), ALLYDVM will use reasonable efforts to re-establish the affected Services promptly after ALLYDVM determines, in its sole discretion, that the situation giving rise to the suspension has been cured. ALLYDVM may terminate the Services in whole or in part if any of the foregoing causes of suspension is not cured within 30 days. Any suspension or termination by ALLYDVM under this paragraph shall not excuse Practice from Practice’s obligation to make payment(s) under this Agreement.
d. Sections 1 (Definitions), 2(c) (License Grants), 3 (Ownership and Restrictions), 4 (Fees and Taxes), 5 (Term and Termination; Suspension); 6 (User Access); 7 (Acceptable Use Policy); 8 (Changes); 9 (Confidentiality and Data Protection); 11 (Practice Warranties and Representations); 12 (Indemnity and Limited Liability); 13 (Important Disclaimers); 14 (Third-Party Services); and 16 (Miscellaneous) shall survive any termination of this Agreement.
6. User Access
Practice is responsible for identifying and authenticating all Users, for approving access by such Users to the Services, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords, and account information. ALLYDVM is not responsible and shall have no liability for any harm caused by Practice or any User, including without limitation any unauthorized access to or use of the Services attributable to Practice’s or any User’s failure to protect usernames, passwords, or accounts, or to adequately secure local identity management infrastructure, computers or devices. Practice is responsible for all activities that occur under Practice’s and Users’ usernames, passwords, or accounts or as a result of Practice’s or Practice’s Users’ access to the Services and agrees to notify ALLYDVM immediately of any unauthorized use. Practice agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
7. Acceptable Use Policy
a. Practice is solely responsible for approving the content, manner, and timing of communication of all materials and communications distributed, published, or transmitted by ALLYDVM on Practice’s behalf in connection with the Services. ALLYDVM will have no liability to Practice, any User or any third party in connection therewith. In addition to any other rights afforded to ALLYDVM under this Agreement, ALLYDVM may take remedial action if any material violates the restrictions in this Acceptable Use Policy, including the removal or disablement of access to such material, suspension of the Service or termination of this Agreement. ALLYDVM shall have no liability to Practice in the event that ALLYDVM takes such action. Practice shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all of Practice Content. Practice agrees to defend, indemnify and hold harmless ALLYDVM and its affiliates and their employees, officers, directors, licensors and agents from and against any claim arising out of a violation of Practice’s obligations under this section.
b. Practice shall not use or permit use of the Services, including by uploading, emailing, posting, publishing, or otherwise transmitting or causing ALLYDVM to transmit any material, including Practice Content and Third-Party Content, for any purpose that may:
(1) Menace or harass any person or cause damage or injury to any person or property;
(2) Involve the publication of any material that is false, misleading, defamatory, harassing, or obscene;
(3) Violate privacy rights or promote bigotry, racism, hatred, or harm;
(4) Constitute unsolicited bulk e-mail, “junk mail”, “spam,” or chain letters;
(5) Bypass any measures used by or on behalf of ALLYDVM to prevent or restrict access to the Services;
(6) Constitute an infringement of any obligation of confidentiality or any intellectual property or other proprietary rights of ALLYDVM, SecureDVM or any third party;
(7) Use or contain invalid or forged headers, invalid or non-existent domain names, or other means of deceptive addressing;
(8) Employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path;
(9) Use a third party's internet domain name, or be relayed from or through a third party's equipment, without permission of the third party;
(10) Cache, create or transmit any unauthorized links to the Services;
(11) Post, transmit or link to any material that contains any software virus, Trojan horse, worm, backdoor or any other computer code, files or programs, designed, or the effect of which is, to permit unauthorized access to, or to disable, interrupt, erase, harm, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(12) Use any data mining, robots, spiders or other automatic devices, processes or means to access, monitor, transmit or copy any part of the Services or materials made available through the Services;
(13) Use the Services other than in accordance with the then-current Documentation or in any manner that, in ALLYDVM’s sole determination, could disable, overburden, damage, or impair the Services or interfere with any other party’s use of the Services; or
(14) Otherwise violate applicable law, regulations, or this Agreement.
ALLYDVM may make changes or updates to the Services and Documentation during the Services Period, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third-Party Content, or for any other reason. ALLYDVM will use commercially reasonable efforts to ensure that such changes will not result in a material reduction in the level of performance, security or availability of the applicable Services provided to Practice for the duration of the Services Period.
9. Confidentiality and Data Protection
a. Practice will hold confidential and not disclose to any third party the terms of this Agreement, ALLYDVM’s pricing and fees, the nature, specifics or specifications of the Services or any other services or proposal offered by ALLYDVM, or ALLYDVM’s propriety information.
c. Practice is responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Practice Content, including any viruses, Trojan horses, worms, or other programming routines contained in Practice Content that could limit or harm the functionality of a computer or network, or that could damage, intercept, or expropriate data or otherwise result in a violation of ALLYDVM’s Acceptable Use Policy. ALLYDVM is not responsible and shall have no liability for the use, security or confidentiality of any Practice Content disclosed or transferred to any third party by Practice or in accordance instructions from or authorized by Practice.
e. ALLYDVM does not knowingly collect information from children under the age of 13. Furthermore, ALLYDVM does not target the Services to children under that age nor will ALLYDVM knowingly communicate with children under 13. Parents and guardians of young children are responsible for their children’s information and Practice shall not share such information with ALLYDVM through the Services, its website or otherwise.
10. Ancillary Software
ALLYDVM may provide Practice with certain Ancillary Software for use with the Services. If ALLYDVM licenses Ancillary Software to Practice and does not specify separate terms for such Ancillary Software, then, such Ancillary Software will be deemed to be part of the Services and subject to the terms and conditions of this Agreement and, subject to Practice’s payment obligations, (i) Practice has the non-exclusive, non-assignable, worldwide limited right to use such Ancillary Software solely to facilitate Practice’s access to, operation of, and/or use of the Services, subject to the terms of this Agreement, including the Services Specifications for the Services ordered, and (ii) Practice’s right to use such Ancillary Software will terminate upon the earlier of ALLYDVM’s notice (which may be through posting on the ALLYDVM Practice Portal such other URL designated by ALLYDVM) or the end of the Services associated with the Ancillary Software. If Ancillary Software is licensed to Practice under separate license terms, including third-party license terms, then Practice’s use of such software is subject solely to such separate terms.
11. Practice Warranties and Representations
Practice warrants and represents to ALLYDVM that Practice possesses all requisite power and authority to execute this Agreement and perform its obligations hereunder, including to grant the licenses and rights granted by Practice in this Agreement, and that the transactions hereunder will not result in a breach or violation of, or a default under, any agreement by which Practice is bound, including any agreements with third parties described in Section 14, or rules, laws, or regulations to which Practice is subject. Practice agrees to provide ALLYDVM with all information, access, and full, good-faith cooperation reasonably necessary to enable ALLYDVM to provide the Services.
12. Indemnity and Limited Liability
b. Practice acknowledges that any and all of the indemnified Covered Parties in the foregoing paragraph are not veterinarians or, if they are, are not acting in the capacity of veterinarian, and Practice hereby assumes full responsibility for any and all communication and information delivered through, published on, or generated by the Services. Practice acknowledges that no communication from ALLYDVM constitutes medical advice.
c. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ALLYDVM OR ANY OF THE COVERED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL, AND COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, HOWSOEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM: (A) THE USE OF, OR THE INABILITY TO USE, THE SERVICES OR ANY INFORMATION CONTAINED THEREON, (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF PRACTICE’S TRANSMISSIONS OR DATA, INCLUDING THE PRACTICE CONTENT, (C) THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES, (D) RELIANCE ON CONTENT OR POSTINGS ON THE SERVICES, OR (E) ANY OTHER MATTER RELATING TO THE SERVICES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT ALLYDVM HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
d. PRACTICE FURTHER ACKNOWLEDGES AND AGREES THAT ANY AND ALL INDEMNIFICATIONS, WAIVERS, DISCLAIMERS, LIMITATIONS, WARRANTIES, COVENANTS AND OTHER PROTECTIONS PROVIDED BY PRACTICE HEREIN SHALL INURE TO THE BENEFIT OF ALLYDVM’S THIRD PARTY SERVICE PRACTICES.
e. IN NO EVENT SHALL ALLYDVM’S LIABILITY OR THE LIABILITY OF ANY OTHER COVERED PARTY TO PRACTICE EXCEED, IN THE AGGREGATE, THE AGGREGATE FEES RECEIVED BY ALLYDVM FROM PRACTICE IN THE LAST SIX (6) MONTHS FOR THE SERVICES IN CONNECTION WITH WHICH THE LIABILITY AROSE, LESS ANY REFUNDS OR CREDITS GIVEN BY ALLYDVM TO PRACTICE IN CONNECTION WITH SUCH SERVICES.
13. Important Disclaimers
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ALL TEXT, IMAGES, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICES ARE PROVIDED “AS AVAILABLE” AND "AS IS", AND ALLYDVM MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, ALLYDVM DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE THROUGH THE SERVICES WILL BE ACCURATE OR FREE OF ERRORS; (ii) THE FUNCTIONS OR SERVICES (INCLUDING BUT NOT LIMITED TO MECHANISMS FOR THE DOWNLOADING AND UPLOADING OF PRACTICE OR THIRD-PARTY CONTENT) PROVIDED BY THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICES OR THE SERVER(S) THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14. Third-Party Services
a. Background: ALLYDVM and SecureDVM regularly provide Services to veterinary practices and other veterinary industry organizations other than for purposes of providing ALLYDVM’s standard, subscription-based client communication and related Services to Practice and Users. In some cases a veterinary practice (or group of practices) or other veterinary industry organization may ask ALLYDVM or SecureDVM to help the practice or business integrate with a third-party service provider. For example, a veterinary practice may ask SecureDVM to help the practice integrate with a distribution services provider to facilitate more efficient ordering and inventory management. In other cases, a third-party service provider may ask ALLYDVM or SecureDVM to help the service provider integrate with veterinary practices, with the practice’s consent or pursuant to an agreement between the third party and the practice. For example, a distribution services provider may ask SecureDVM to integrate with veterinary practices that are participating in a program with the service provider, such as a marketing campaign or a scientific study, or a third party may engage SecureDVM as a subcontractor in connection with services being provided by such third party to a veterinary practice or group of practices.
b. Applicable Terms: (i) In the event that Practice engages ALLYDVM and/or SecureDVM directly in connection with Practice’s relationship with any such third-party, or otherwise requests or authorizes ALLYDVM to provide Practice Content or other data or integration services to a third-party, all of the terms and conditions of this Agreement shall apply to Services provided by ALLYDVM and/or SecureDVM to Practice in connection with such engagement. (ii) In the event that a third party engages Practice in connection with such third party’s relationship with Practice and Practice consents or has contractually agreed with such third party to receive any of the third-party’s services via ALLYDVM or SecureDVM or to provide ALLYDVM or SecureDVM with access to its information technology systems, Practice Content or other information and materials in connection with its relationship with such third party, including services delivered or access provided prior to the date of this Agreement, the following sections of this Agreement shall apply to such services or access, as between ALLYDVM and/or SecureDVM and Practice: 1 (Definitions), 2(c) (License Grant); 3 (Ownership and Restrictions); 8 (Changes); 9 (Confidentiality and Data Protection); 10 (Ancillary Software), if applicable; 11 (Practice Warranties and Representations); 12 (Indemnity and Limited Liability); 13 (Important Disclaimers); 14 (Third-Party Services); 15 (Miscellaneous Provisions). (iii) Practice’s agreement with such third party, if any, may contain different or additional terms and conditions, which shall not be affected by this Agreement, provided that ALLYDVM shall not be bound to such terms. ALLYDVM and/or SecureDVM shall be entitled to rely on Practice’s or the applicable third party’s instructions in connection with the foregoing, as applicable, and Practice’s acceptance of services or provision of access described in clause (ii) shall constitute Practice’s acknowledgment of and agreement with such third-party instructions.
c. Release: If Practice authorizes or instructs ALLYDVM to grant any third party access to Practice Content or other data and/or transfer such Practice Content or data to a third party, Practice (i) acknowledges and agrees that Practice is solely responsible to enter into any agreement with such third party to govern the third party’s access, possession, processing and use of the Practice Content and other data and ensure that such access, possession, processing and use complies with all applicable laws; (ii) acknowledges and agrees that ALLYDVM does not limit or have any control of that third party’s possession, processing or use of the Practice Content and other data; and (iii) hereby releases and indemnifies ALLYDVM and the Covered Parties from and against all claims, actions, damages, losses, costs (including reasonable attorney’s fees and court costs), and liabilities arising from or related to: ALLYDVM transferring the Practice Content and other data to such third party or such third party’s access, possession, processing or use of such Practice Content and other data.
15. Marketing Campaigns: In conjunction with manufacturers, distributors or other services providers, ALLYDVM may from time to time offer Practice the option to participate in marketing campaigns directed to Practice’s clients using Practice Content. Such marketing campaigns may market third party products or services to Practice’s clients directly or in the name or on behalf of Practice. ALLYDVM will not include Practice in any marketing campaign unless Practice affirmatively elects to participate in that particular marketing campaign. However, Practice’s election to participate in any marketing campaign constitutes an express and legally binding request and authorization for ALLYDVM to send marketing messages to Practice’s clients on Practice’s behalf in accordance with the parameters of that campaign, as determined by ALLYDVM, and without Practice’s pre-approval of the specific details and messaging. If any of Practice’s customers or clients have unsubscribed from or opted-out of receiving marketing messages from or on behalf of Practice, Practice shall, upon electing to participate in any marketing campaign, provide ALLYDVM a list of all clients and accounts (e.g. email address or phone number) that have unsubscribed or opted-out. Further, Practice shall inform ALLYDVM on an ongoing basis of any and all clients, individuals and accounts that unsubscribe or opt-out of marketing messages not more than 3 days after Practice’s receipt of such request. Practice hereby releases ALLYDVM and its affiliates and their employees, officers, directors, from all claims related to such marketing campaign and activities.
16. Miscellaneous Provisions
a. Governing Law and Arbitration: This Agreement and all disputes arising out of or relating hereto will be governed by the laws of the State of Delaware without reference to any conflict or choice of law principles. Practice HEREBY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUCH DISPUTE; all disputes shall be subject to a “bench” trial before a judge. In connection with any dispute arising out of or relating to this Agreement Practice hereby submits to the exclusive jurisdiction and venue of the courts in Delaware or, if elected by ALLYDVM, any court having jurisdiction in the location of ALLYDVM’s principal executive office. Practice further waives any claim that any such court constitutes an inconvenient forum or forum non conveniens. Any judgment in any such proceeding may be enforced by any court of competent jurisdiction.
b. Notice: Except as otherwise set forth in this Section, any notice required under this Agreement shall be provided to the other party in writing. If Practice has a legal dispute with ALLYDVM, or if Practice become subject to insolvency or other similar legal proceedings, Practice will promptly send written notice to:
3041 W. Pasadena Dr.
Boise, ID 83705
Attn: Law Department
When required by this Agreement, notice may be provided by ALLYDVM in a number of ways including but not limited to email, posts in the Services, and phone calls to Practice.
c. Independent Contractor: ALLYDVM and SecureDVM, on the one hand, and Practice, on the other hand, are independent contractors; no partnership, joint venture, or agency relationship exists between the parties.
e. Severability: If and to the extent that any court of competent jurisdiction determines that it is impossible to construe any provision of this Agreement consistently with any law or public policy and consequently holds that provision to be invalid, such holding shall in no way affect the validity of the other provisions of this Agreement, which shall remain in full force and effect. The parties agree to then work together on amending this Agreement in such a way that most closely conforms to the original spirit of this Agreement while complying with all laws, ordinances, and regulations.
f. Force Majeure: Neither ALLYDVM nor Practice shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or other interruption of service deemed to result, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, war, terrorism, accidents, fires, explosions, earthquakes, floods, failure of transportation, strikes or other work interruptions by either party's employees, or any other similar cause beyond the reasonable control of either ALLYDVM or Practice. Each party shall use reasonable efforts to mitigate the effect of a force majeure event. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Practice’s obligation to pay for the Services. ALLYDVM may terminate this Agreement if a force majeure event continues for a period of thirty (30) days or more.
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