Effective Date: January 8, 2019
PLEASE READ THIS USER AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS AND A BINDING ARBITRATION AGREEMENT.
This User Agreement (this "Agreement") is a contract between you ("you" or "User") and VRS d/b/a VetRelief.com ("Company," "we," or "us"). You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of our website located at www.vetrelief.com or any part of the rest of the Site or the Site Services. For purposes of this Agreement, "Site" means, collectively, our website located at www.vetrelief.com, all affiliated websites, including mobile websites and vetrelief.com mobile applications, if any, owned and operated by us, our predecessors or successors in interest, or our affiliates. For purposes of this Agreement, "Site Services" means, collectively, all services, applications and products provided by the Site.
1. COMPANY ACCOUNTS
1.1 REGISTRATION AND ACCEPTANCE
1.2 ACCOUNT ELIGIBILITY
Company offers the Site and Site Services for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you (a) are (i) a licensed veterinarian in the State of California, in good standing, with the Veterinary Medical Board of the Department of Consumer Affairs of the State of California or (ii) a Hospital Owner or an officer, employee or other agent of a Hospital Owner; (b) will use the Site and Site Services for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and the provision of veterinary services; and (d) are a legal entity or an individual 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) who can form legally binding contracts.
1.3 ACCOUNT PROFILE
In consideration of use of the Site Services, User agrees to: (a) provide true, accurate, current, and complete information about User as prompted by the Account registration form; and (b) to maintain and update this information to keep it true, accurate, current, and complete. If any information provided by User is untrue, inaccurate, not current, or incomplete, Company has the right to terminate User's account and refuse any and all current and/or future use of the Site Services.
1.4 ACCOUNT TYPES
As described in this Section, there are different Account types.
1.4.1 DOCTOR ACCOUNT
A USer can register for an Account or add an Account type to use the Site and Site Services as a Doctor (a "Doctor Account").
1.4.2 HOSPITAL ACCOUNT
A User can register for one or more Accounts to use the Site and Site Services as a Hospital Owner (each, a "Hospital Account"). Each Hospital Owner shall maintain a separate Hospital Account for each Hospital at which such Hospital Owner desires any Doctor to render services.
1.5 ACCOUNT PERMISSIONS
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create a Hospital Account on behalf of a Hospital or Hospital Owner.
1.6 IDENTITY AND LOCATION VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm certain information, including, but not limited to, your identity, your location, your credentials, and your ability to act on behalf of the applicable entity. You authorize Company, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business.
1.7 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. User shall select a user name which is unique, not obscene, unlawful, or otherwise objectionable, at Company's sole discretion. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person who is not authorized to use your Account. You authorize Company to assume that any person using the Site with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use either or (b) the use would violate the Terms of Service.
The Site is a marketplace where Doctors seeking employment and Hospital Owners seeking to employ Doctors at such Hospital Owner's Hospital or an Affiliated Hospital can identify each other and seek to form an employment or other service relationship. Subject to the Terms of Service, Company provides the Site Services to Users, including hosting and maintaining the Site.
2.1 RELATIONSHIP WITH COMPANY
Company merely makes the Site and Site Services available to enable Doctors and Hospital Owners to find and transact directly with each other. Company does not introduce Doctors and Hospital Owners, find potential employment opportunities for Doctors, or find Doctors for Hospital Owners. Through the Site and Site Services, Doctors may be notified of Hospital Owners seeking Doctors to perform services at one or more Hospitals, and Hospital Owners may be notified of Doctors; at all times, however, Users are responsible for evaluating and determining the suitability of any Doctor or Hospital on their own. If Users decide to enter into a Service Relationship, the Service Relationship is directly between the Users and Company is not a party to that Service Relationship.
You acknowledge, agree, and understand that Company is not a party to the relationship or any dealings between Doctor and Hospital Owner. Without limitation, Users are solely responsible for (a) ensuring the accuracy and legality of any User Content, (b) determining the suitability of other Users for a Service Relationship (such as any interviews, vetting, background checks, or similar actions), (c) negotiating, agreeing to, and executing any terms or conditions of Service Relationships, (d) performing veterinary services, or (e) paying for Service Relationships or veterinary services performed. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Service Relationship with another User and for verifying any information about another User. Company does not make any representations about or guarantee the truth or accuracy of any Doctor's or Hospital Owner's User Content on the Site; does not verify that any Hospital or Hospital Owner holds any required permits, verify that any Doctor holds the necessary license(s), or vet or otherwise perform background checks on Doctors, Hospitals or Hospital Owners. You acknowledge, agree, and understand that Company does not, in any way, supervise, direct, control, or evaluate Doctors or their work and is not responsible for any services performed by any act or omission of any Doctor, including any services performed by such Doctor. Company makes no representations about and does not guarantee, and you agree not to hold Company responsible for, the quality, safety, or legality of any services performed by any Doctor; the qualifications, background, or identities of Users; the ability of Doctors to perform the requested services; the ability of Hospital Owners to pay Doctors for services rendered; User Content, or statements or posts made by Users; or the ability or willingness of a Doctor or Hospital Owner to actually complete a transaction.
You further acknowledge, agree, and understand that: (i) you are not an employee of Company, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) Company will not have any liability or obligations under or related to Service Relationships and/or any acts or omissions by you or other Users; (iii) Company does not, in any way, supervise, direct, or control any Doctor, Hospital or Hospital Owner; (iv) Company does not set or have any control over Doctor's pricing, work hours, work schedules, or work location, nor is Company involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to any Doctor; (v) Doctor will be paid at such times and amounts as agreed with a Hospital Owner in a given Service Relationship, and Company does not, in any way, provide or guarantee Doctor a regular salary or any minimum, regular payment; (vi) Company does not provide Doctor with training or any equipment, labor, tools, or materials related to any Service Relationship; and (vii) Company does not provide the premises at which Doctors will perform the services.
2.2 FEEDBACK AND USER CONTENT
You hereby acknowledge and agree that Users publish and request Company to publish on their behalf information on the Site about the User, such as feedback, composite feedback, geographical location, or verification of identity or credentials. However, such information is based solely on unverified data that Users voluntarily submit to Company and does not constitute and will not be construed as an introduction, endorsement, or recommendation by Company. Company provides such information solely for the convenience of Users.
You acknowledge and agree that User feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that Company post composite or compiled feedback about Users, including yourself, on the Site. You acknowledge and agree that feedback results for you, wherever referenced, and other User Content highlighted by Company on the Site or otherwise ("Composite Information"), if any, will include User comments, User reviews, User ratings, indicators of User satisfaction, and other feedback left exclusively by other Users. You further acknowledge and agree that Company will make Composite Information available to other Users, including composite or compiled feedback. Company provides its feedback system as a means through which Users can share their opinions of other Users publicly, and Company does not monitor, influence, contribute to or censor these opinions. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
Company does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content if such User Content is legally actionable, libelous, or defamatory. Company is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory, libelous, or otherwise legally actionable. User acknowledges and agrees that Company and its third party service providers do not endorse the content of any User communications and are not responsible or liable for any unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, obscene, indecent, tortious, or otherwise objectionable content, or content that infringes or may infringe the intellectual property or other rights of another. In order to protect the integrity of the feedback system and protect Users from abuse, Company reserves the right (but is under no obligation) to remove posted feedback or information that, in Company's sole judgment, violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of Company. You acknowledge and agree that you will notify Company of any error or inaccurate statement in your feedback results, including the Composite Information, and that if you do not do so, Company may rely on the accuracy of such information.
User understands and agrees that technical (and sometimes manual) processing of email communications, search requests, postings, and any other information supplied by User is and may be required: (a) to send and receive messages; (b) to conform to the technical requirements of connecting networks; (c) to conform to the limitations of the Site Services; or (d) to conform to other, similar technical requirements.
3. CONTRACTUAL RELATIONSHIP BETWEEN DOCTOR AND HOSPITAL OWNER
If a Doctor and a Hospital Owner decide to enter into a Service Relationship, the Service Relationship is a contractual relationship directly between the Doctor and the Hospital Owner. Doctor and Hospital Owner have complete discretion both with regard to whether to enter into a Service Relationship with each other and with regard to the terms of any Service Relationship. You acknowledge, agree, and understand that Company is not a party to any Service Relationships, that the formation of a Service Relationship between Users will not, under any circumstance, create an employment or other service relationship between Company and any User or a partnership or joint venture between Company and any User. Hospital Owner shall be solely liable with respect to any and all compensation due and owing arising from any Service Relationship, including any amounts owed for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits. With respect to any Service Relationship, Doctors and Hospital Owners may enter into any written agreements that they deem appropriate (e.g., confidentiality agreements, etc.) provided that any such agreements do not conflict with, narrow, or expand Company's rights and obligations under the Terms of Service, including this Agreement.
4. WORKER CLASSIFICATION
Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Company and a User.
Hospital Owner is solely responsible for and has complete discretion with regard to selection of any Doctor. Hospital Owner is solely responsible, warrants its decisions regarding classification are correct, and assumes all liability, for determining whether Doctors should be engaged as independent contractors or employees of Hospital Owner and engaging them accordingly. Company will have no input into, or involvement in, worker classification as between Hospital Owner and Doctor and Users agree that Company has no involvement in and will have no liability arising from or relating to the classification of any Doctor.
5. COMPANY FEES
5.1 SERVICE FEES
With respect to each Service Relationship entered into between a Doctor and a Hospital Owner, such Hospital Owner hereby agrees to pay to Company a service fee in the amount of $65.00 for each day or portion thereof during which such Doctor performs services of any nature ("Service Fee") at any Affiliated Hospital (as defined below); provided, that such Service Fee shall be applicable only to the first two hundred thirty-one (231) days of services performed by such Doctor at each Affiliated Hospital . The Service Fee shall be due and owing to Company regardless of which party instigated the arrangement, the terms of hire or the employment relationship, the portion of any day worked by such Doctor, or any prior relationship between Users. The Service Fee is not dependent on receipt of payment by Hospital Owner for services performed by Doctor, any act or omission of Doctor in the performance of such services, or the quality of the services performed by such Doctor. For avoidance of doubt, Hospital Owner agrees that (i) the Service Fee shall apply to the first two hundred thirty-one (231) days of services provided by Doctor to each Affiliated Hospital in whatever capacity, (ii) the dates of service need not be consecutive, and (iii) the Service Fee shall continue to apply with respect to any services performed by Doctor regardless of whether such services are scheduled through the use of the Company's services or whether such Doctor is employed on a full-time or part-time basis. The parties further agree that in the event that a Hospital Owner owns more than one (1) Hospital, the 231-day period referenced above shall apply on a per Hospital and per Doctor basis. For example, assume that a Hospital Owner employs a Doctor at Hospital A for 231 days and also employs the same Doctor at Hospital B for 230 days. In this scenario, in addition to the Services Fees applicable to the services performed by the Doctor at Hospital A, Hospital Owner shall be liable to the Company for Services Fees related to the first 231 days of services performed by Doctor for Hospital B. The example set forth in this paragraph is for illustration purposes only.
5.2 PAYMENT OF SERVICE FEES
Company shall deliver to Hospital Owner monthly invoices setting the Service Fees owed under this Agreement. Payment of such Service Fees by Hospital Owner shall be due no later than thirty (30) days following the date of the applicable invoice. Any amounts due from Company by Hospital Owner that are not timely paid shall bear interest at the rate of 1% per month from the due date until the date such amounts are paid.
5.3 NO FEE FOR INTRODUCING OR FOR FACILITATING EMPLOYMENT
Company merely makes the Site and Site Services available to enable Doctors to secure employment themselves and may from time to time highlight Hospital Owners or Hospitals that may be of interest. Company does not charge a service fee until the successful entry of a Doctor into a Service Relationship with a Hospital Owner.
6. NON-CIRCUMVENTION; NON-DISCLOSURE; INTELLECTUAL PROPERTY6.1 NON-CIRCUMVENTION
You acknowledge and agree that the compensation Company receives for making the Site available to you is primarily collected through a Service Fee. Therefore, during the Non-Circumvention Period (as defined below), (i) each Doctor agrees to use the Site to enter into Service Relationships to perform services at any Affiliated Hospital of a Hospital Owner; and (ii) each Hospital Owner and its successors and assigns agrees to use the Site to enter into Service Relationships with any Doctor to perform services at any Affiliated Hospital with respect to such Hospital Owner. If you use the Site as an employee, agent, or representative of a User, then the Non-Circumvention Period applies to you and other employees, agents, or representatives of the User when acting in that capacity with respect to the User.
- By way of illustration and not in limitation of the foregoing, you agree not to:
- with respect to Doctors, submit bids or proposals outside the Site to job listing placed by Hospital Owners on the Site;
- With respect to Doctors, accept bids or proposals outside the Site to job listings placed by Hospital Owners on the Site;
- With respect to Hospital Owners, solicit the services of Doctors outside the Site for job listings placed by Hospital Owner on the Site; and
- With respect to Hospital Owners, accept bids or proposals from Doctors outside the Site to job listings placed by such Hospital Owner on the Site./
You agree to notify Company immediately if a person suggests to you to take any action in violation of this Section 6.1. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to Company by sending an email message to: [firstname.lastname@example.org.
User agrees to use the information set forth on the Site or otherwise disclosed to User by Company in connection with User's use of the Site Services ("Site Information") solely for the purpose of utilizing the Site and the Site Services to post jobs on the Site, bid on jobs on the Site, and evaluate, negotiate and enter into Service Relationships in accordance with this Agreement and the Terms of Service. User hereby agrees not to publish, show or otherwise disclose any Site Information to any third parties without the prior written consent of the Company, which consent may be withheld or conditioned in Company's sole discretion. For avoidance of doubt, User agrees not to (i) disclose any Site Information related to posted jobs, Hospitals or Hospital Owners to any third parties; and (ii) disclose any Site Information related to any Doctor with any third parties. The provisions of this Section 6.2 shall survive the termination of this Agreement for a period of three (3) years.
6.3. INTELLECTUAL PROPERTY
Company and Company's licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. Company logos , names and trade names are trademarks of Company. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners. Nothing in the Terms of Service grants you a right to use any marks of Company.
7 USER OBLIGATIONS;
Each Hospital Owner agrees to notify Company promptly upon the occurrence of the following: (a) the agreement by Hospital Owner to employ any Doctor who has previously entered into a Service Relationship with Hospital Owner utilizing the Site or the Site Services to perform any additional services, including additional relief work, for such Hospital Owner; (b) any Doctor who has previously entered into a Service Relationship with Hospital Owner utilizing the Site or the Site Services accepts part-time or permanent employment with Hospital Owner; (c) any change is made to any scheduled dates of service to be performed by any Doctor related to any Service Relationship entered into utilizing the Site or the Site Services with Hospital Owner; and (d) if Hospital Owner and any Doctor who has previously entered into a Service Relationship with Hospital Owner utilizing the Site or the Site Services enter into negotiations to purchase all or substantially all of the assets or equity interests (whether via merger or equity purchase) of Hospital Owner or substantially all of the assets of any Hospital owned, operated or managed by Hospital Owner. Notwithstanding the foregoing, the notification obligations set forth in this Section shall terminate upon the expiration of the Non-Circumvention Period with respect to the applicable Hospital and Doctor. Hospital Owner shall be liable to Company for any damages caused to Company as a result of any failure of Hospital Owner to timely comply with the notification obligations set forth in this Section, including any unpaid Service Fees otherwise due and owing to Company related to any services performed by Doctor for Hospital Owner for which notification was not given pursuant to this Section.
Each Hospital Owner, either directly or indirectly through its agents or employees, shall be solely responsible to evaluate and verify the information provided by any Doctor who places any bid on any job posted on the Site by such Hospital Owner and perform such other due diligence as Hospital Owner deems prudent, including verifying a Doctor's credentials and veterinary medicine license status and contacting any references provided by such Doctor, prior to entering into any Service Relationship with such Doctor. Each Hospital Owner shall be solely responsible to ascertain that such Doctor practices veterinary medicine aligned with the practice philosophies, protocols, and expectations of the Hospital at which services will be performed. Hospital Owner hereby agrees and acknowledges that: (i) Company cannot guarantee that any Service Relationship entered into using the Site and the Site Services shall be successful or meet the performance expectations of any Hospital Owner or Hospital; (ii) Company does not train or certify any Doctor; and (iii) Company shall not be held liable by any Hospital Owner for any act or omission of any Doctor.
8. RECORDS OF COMPLIANCE
Users will each (a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (b) to the extent permitted under applicable law, provide copies of such records to Company upon request. Nothing in this subsection requires or will be construed as requiring Company to supervise or monitor a User's compliance with this Agreement, the other Terms of Service, or a Service Relationship. You are solely responsible for creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on Company's part to store, backup, retain, or grant access to any information or data for any period.
9. WARRANTY DISCLAIMER
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, ANY SERVICES RENDERED BY ANY DOCTOR, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. SECTION 13 (TERM AND TERMINATION) STATES USER'S SOLE AND EXCLUSIVE REMEDY AGAINST COMPANY WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
10. LIMITATION OF LIABILITY
Company is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties' use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL COMPANY, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF COMPANY, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $500; OR (B) THE TOTAL SERVICE FEES RECEIVED BY COMPANY WITH RESPECT TO SERVICE RELATIONSHIPS IN WHICH USER WAS INVOLVED AS DOCTOR OR HOSPITAL OWNER DURING THE ONE-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM OF SUCH USER. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
In addition to the recognition that Company is not a party to any contract between Users, you hereby release Company, our affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity as of the time you enter into this Agreement. This release includes, for example and without limitation, any disputes regarding the acts, omissions, performance, functions, and quality of the services provided by any Doctor and any failure of any Hospital Owner to compensate any Doctor for any services rendered in accordance with applicable law.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE ß 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASING PARTY."
This release will not apply to a claim that Company failed to meet our obligations under the Terms of Service.
Each Hospital Owner agrees to indemnify, defend and hold Company, its third party service providers, and its and their respective parents, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys' fees and all related costs and expenses), arising out of or related to (i) use of the Services by Hospital Owner or its agents; (ii) connection to the Services by Hospital Owner or its agents; (iii) violation of this Agreement or the other Terms of Service by Hospital Owner or its agents; (iv) violation of any rights of any third party, including a User, by Hospital Owner or its agents; (iv) any act or omission of Hospital Owner or its agents; (v) any Service Relationship entered into by Hospital Owner or its agents, including, but not limited to, the classification of a Doctor as an independent contractor or employee; (vi) the classification of Company as an employer or joint employer of any Doctor arising from any Service Relationship between Hospital Owner and such Doctor; (vii) any employment- related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; (viii) any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits; (ix) failure to comply with applicable law by Hospital Owner or its agents; (x) negligence, willful misconduct, or fraud by Hospital Owner or its agents; (xi) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by Hospital Owner or its agents; (xii) death or injury to person, animal, or property caused, in whole or in part, by Hospital Owner or its agents; (xiii) any injury to any Doctor in transit to or from any Hospital; and (xiv) any inaccuracy or omission in any information set forth in any User account profile. For purposes of this Section 12, your agents include any person who has apparent authority to access or use your account demonstrated by using your username and password.
13. AGREEMENT TERM AND TERMINATION
Without limiting Company's other rights and remedies, User agrees that Company or its third party service providers may temporarily or indefinitely revoke access to the Site or the Site Services, deny your registration, or terminate User's password, Account(s), or use of the Site and Site Services if Company or their third party service providers believe: (i) that User has violated or acted inconsistently with the letter or spirit of this Agreement; (ii) that User has violated the rights of Company or their third party service providers or other Users; (iii) we suspect or become aware that you have provided false or misleading information to us; (iv) we believe, in our sole discretion, that your actions (a) may cause legal liability for you, our Users, or Company or its third party service providers, (b) may be contrary to the interests of the Site or the User community, or (c) may involve illicit or illegal activity. User further agrees that Company and its third party service providers may terminate User's registration, password, Account, or use of the Site Services if User (1) fails to use the Site Services at least one time within seven (7) days after initial registration (the "Initial Period"); or (2)fails to use the Site Services at least one time during any consecutive 30-day period following the Initial Period. Upon any termination in accordance with this Section 13.1 or as otherwise permitted in this Agreement, User agrees Company may immediately delete User's Account(s) and all related information, communications, and files, and may bar any further access to such Account(s), communications, files, or the Site Services under any provision of this Agreement. User also acknowledges and agrees that termination of any of the Site Services may be effected without prior notice and Company and its third party service providers shall have no liability to User with respect to any such termination.
13.2 ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Site and that that any closure of your Account may involve deletion of any content stored in your Account for which Company will have no liability whatsoever. Company, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions related to arbitration, intellectual property, non-circumvention, non-disclosure, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates. Without limiting any other provisions of this Agreement, the termination of this Agreement for any reason will not release you or Company from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
14. DISPUTES BETWEEN YOU AND COMPANY
14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and Company, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, Company, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, your relationship with Company, the termination of your relationship with Company, or the Site Services (each, a "Claim") in accordance with this Section 14 (sometimes referred to as the "Arbitration Provision"). Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes, or controversies arising out of or relating to this Agreement, the Terms of Service, any Service Relationship, whether these claims or controversies are found in contract or tort (including personal injury) or arise under statute including, without limitation, trade secrets and unfair competition, and all other federal or state legal claims arising out of or relating to your relationship with Company or the termination of that relationship.
14.2 CHOICE OF LAW
This Agreement and any Claim will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). However, notwithstanding the foregoing sentence, this Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. ßß 1 et seq.).
14.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and Company agree to first notify each other of the Claim. You agree to notify Company of the Claim at [__24701 La Plaza #205, Dana Point, CA. 92629___] or by email to [email@example.com___], and Company agrees to provide to you a notice at your email address on file (in each case, a "Notice"). You and Company then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or Company, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and Company will have 60 days from the date of the receipt of the Notice to informally resolve the other party's Claim, which, if successful, will avoid the need for further action.
14.4 BINDING ARBITRATION AND JURY TRIAL WAIVER (DOES NOT APPLY TO USERS LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES)This Arbitration Provision applies to all Users except Users located outside of the United States and its territories. In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, Company, and our affiliates agree to resolve the Claim by final and binding arbitration before one (1) arbitrator from JAMS, instead of a court or jury. JAMS may be contacted at www.jamsadr.com.
14.4.1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
This Arbitration Provision applies to any Claim (defined above) the parties may have and survives after your relationship with Company ends. Claims covered by this Arbitration Provision include, but are not limited to, all claims, disputes or controversies arising out of or relating to this Agreement, and the Terms of Service. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided herein, arbitration will be conducted in Orange County, California in accordance with the JAMS Comprehensive Arbitration Rules and Procedures' Optional Expedited Arbitration Procedures then in effect. The applicable JAMS arbitration rules may be found at www.jamsadr.com or by searching online for "JAMS Comprehensive Arbitration Rules and Procedures". Any party will have the right to appear at the arbitration by telephone and/or video rather than in person. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator's decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between Company and you that is or was already pending in a state or federal court or arbitration before the Effective Date. Notwithstanding any other provision of this Agreement, no amendment to this Arbitration Provision will apply to any matter pending in an arbitration proceeding brought under this Section 14 unless all parties to that arbitration consent in writing to that amendment.
This Arbitration Provision also does not apply to claims for workers compensation, state disability insurance or unemployment insurance benefits.
14.4.2. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. Except as otherwise provided in this Arbitration Provision, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Arbitration Provision, this Agreement, or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
14.4.3. FEES AND COSTS
In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator(s) determine a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration.
14.4.4.Enforcement of this Arbitration Provision.
This Arbitration Provision replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
14.5. INJUNCTIVE RELIEF
User hereby agrees and acknowledges that any violation by User or its Affiliates or agents would cause irreparable harm to Company for which monetary damages would not provide an adequate remedy. Notwithstanding anything to the contrary set forth in this Agreement, User hereby agrees and acknowledges that Company will be entitled to seek extraordinary relief in court, including, but not limited to, temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security (or, where such a bond or security is required, that a $1,000 bond will be adequate), in addition to and without prejudice to any other rights or remedies that Company may have for a breach of this Agreement.
15.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and Company relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings are included for ease of reference only and have no binding effect. Even though Company drafted this Agreement, you represent that you had ample time to review and decide whether to agree to this Agreement. If an ambiguity or question of intent or interpretation of this Agreement arises, no presumption or burden of proof will arise favoring or disfavoring you or Company because of the authorship of any provision of this Agreement or the Terms of Service.
15.2 MODIFICATIONS; WAIVER
No modification or amendment to this Agreement or the other Terms of Service will be binding upon Company unless in a written instrument signed by a duly authorized representative of Company or posted on the Site by Company. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.
15.3 ASSIGNABILITY; SUCCESSORS
User may not assign this Agreement or the other Terms of Service, or any of its rights or obligations hereunder, without Company's prior written consent in the form of a written instrument signed by a duly authorized representative of Company. Company may freely assign this Agreement and the other Terms of Service without User's consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, this Agreement, including the obligations related to the payment of the Service Fees, and the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, administrators, executors, and permitted assigns of the parties, including any purchaser, directly or indirectly, of all or substantially all of the assets, operations, or equity interests (whether via merger or equity purchase) of (i) any Hospital Owner or (ii) any Hospital owned, managed or operated by such Hospital Owner. Notwithstanding any such assignment or transfer, Hospital Owner shall remain fully liable for all Service Fees related to any applicable services performed on or prior to the effective date of such transfer or assignment. Hospital Owner hereby agrees, prior to the consummation of any purchase of all or substantially all of the assets of Hospital Owner or any Hospital owned, managed or operated by such Hospital Owner, to cause any such purchaser to expressly agree in writing to assume all liabilities and to perform all obligations of Hospital Owner under this Agreement and the Terms of Service. In addition, in the event that Hospital Owner fails to obtain such agreement from the applicable purchaser, Hospital Owner shall remain jointly and severally liable for all Service Fees and other amounts due and owing under this Agreement from time to time, including any Services Fees related to applicable services performed for such purchaser subsequent to the closing of such purchase.
If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
15.5 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.
15.6 PREVAILING LANGUAGE AND LOCATION
The English language version of this Agreement and the other Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from facilities in the United States.
15.7 ACCESS OF THE SITE OUTSIDE THE UNITED STATES
Company makes no representations that the Site is appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.
In order to access or use the Site or Site Services, you must and hereby represent that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services and your license to use the Site or Site Services will be immediately revoked.
15.8 CONSENT TO USE ELECTRONIC RECORDS
The Site Services may provide, or Users may include in email or community postings, links to other web sites or resources. However, User agrees not to include in email or postings (or elsewhere via the Site Services) any "deep link" which leads to a web page, other than the home page, of another party's web site unless such a link is authorized by the owner of that web site. User acknowledges and agrees that Company and their third party service providers are not responsible for the availability of such external sites or resources, or for User's use of deep links, and that Company and their third party service providers do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources.
15.10 USER CONDUCT
User agrees to abide by all applicable local, state, national, and international laws and regulations during use of the Site Services, and agrees not to interfere with the use and enjoyment of the Site Services by other Users. User agrees to be solely responsible for the contents of User's private and public communications, whether uploaded, posted, emailed, or otherwise transmitted through the Site Services. User agrees: (a) not to use the Site Services for illegal purposes; (b) not to interfere with or disrupt the Site Services or servers or networks connected to the Site Services; (c) to comply with all requirements, procedures, policies, and regulations of networks connected to the Site Services; (d) not to resell the Site Services or use of or access to the Site Services; and (e) to comply with all applicable laws regarding the transmission of technical data exported from the United States. User agrees not to upload, post, email, or otherwise transmit through the Site Services: (a) any unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, obscene, indecent, tortuous, or otherwise objectionable material of any kind; (b) any material that violates the rights of another, including, but not limited to, the Intellectual Property Rights of another; (c) any material that violates any applicable local, state, national, or international law or regulation; or (d) unsolicited or unauthorized advertisements, promotional materials, "junk mail," "spam," "chain letters," or other forms of solicitation. User agrees not to attempt to gain unauthorized access to other computer systems or networks connected to the Site Services. User acknowledges and agrees that Company may ban User from future use of the Site Services if User does not comply with Company's standards of conduct, including if User attempts to use the Site Services through another Hospital Owner, another Doctor, or under a different name. Furthermore, User acknowledges and agrees that Company may recover damages from User if User violates these terms.
15.11 FURTHER ASSURANCES
Each party shall at its own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Agreement.16. DEFINITIONS
"Affiliate" means, with respect to any person or entity, any other person or entity who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such person or entity. The term "control" means the ownership of a majority of the voting securities of the applicable entity or the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of the applicable entity, whether through ownership of voting securities, by contract or otherwise, and the terms "controlled" and "controlling" have meanings correlative thereto. Notwithstanding the foregoing, an "Affiliate" shall include an entity operating an emergency hospital or emergency clinic in which Hospital Owner or its Affiliates holds an ownership interest.
"Affiliated Hospital" means any Hospital owned, operated or managed, directly or indirectly, by a Hospital Owner or any Affiliate of any Hospital Owner.
"Doctor" shall mean any authorized User utilizing a Doctor Account.
"Hospital" means any veterinary facility, including a veterinary practice, veterinary hospital, veterinary clinic, and any other similar facility at which veterinary services are rendered.
"Hospital Owner" shall mean any authorized User which is an individual, sole proprietorship, partnership, joint venture, limited liability company, corporation or any other entity which owns, operates or manages, directly or indirectly, one or more Hospitals or Affiliated Hospitals.
"Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
"Non-Circumvention Period" meanson the date on which such User agreed to be bound by this Agreement and the Terms of Service per Section 1.1 of this Agreement, and terminating on the earlier to occur of (i) the date on which the applicable Doctor shall have performed 231 days of services for the applicable Affiliated Hospital (including any days of services performed by the applicable Doctor for the applicable Affiliated Hospital prior to the date on which such User agreed to be bound by this Agreement for which Service Fees were paid by Hospital Owner; to the Company); provided, however, that Hospital Owner has fully paid all Service Fees related to such services; (ii) 18 months following the date on which the applicable Doctor shall have made a bid with the applicable Hospital Owner, provided, that the applicable Doctor shall not have performed any services for Hospital Owner during such 18-month period; and (iii) 18 months following the last date the applicable Doctor performed services for the applicable Hospital Owner. For avoidance of doubt, the parties hereby agree that in the event that a Hospital Owner owns more than one (1) Hospital or Affiliated Hospital, the 231-day period referenced above shall apply on a per Hospital and per Doctor basis. For example, assume that Hospital Owner X employs Doctor 1 at Hospital A for 231 days and later employs Doctor 1 at Hospital B for 30 days. While the Non-Circumvention Period shall have expired with respect to any further services to be performed by Doctor 1 at Hospital A, the Non-Circumvention Period shall continue to apply with respect to the following: (1) any other Affiliated Hospital at which Hospital Owner X desires Doctor 1 to render any services; (2) Hospital B; and (3) any other Doctor with whom Hospital Owner desires to enter into a Service Relationship at any Hospital or Affiliated Hospital, including Hospital A and Hospital B. The example set forth in this paragraph is for illustration purposes only.
"Service Relationship" means a relationship between a Hospital Owner and a Doctor pursuant to which Doctor shall perform veterinary-related services at any Hospital or Affiliated Hospital of Hospital Owner. "Site Visitor" a visitor to the publicly available portions of the Site.
"User Content" means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other information that you or any Site Visitor or User post to any part of the Site or provide to Company, including such information that is posted as a result of questions.