Software License Agreement
THIS IS A LEGAL DOCUMENT BY YOU (?LICENSEE?), AND VIN (?we?, ?us?, or ?our?). PLEASE READ THIS AGREEMENT BEFORE USING THE SOFTWARE AND THE SERVICES. BY USING THE SOFTWARE, YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO ACCEPT AND BE BOUND BY IT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, DO NOT ACCESS THE SOFTWARE.
THIS SOFTWARE LICENSE AGREEMENT ("License") is entered by and among you and us. It is made effective as of the date you access the services (the "Effective Date") to which you have subscribed (the "Services"), and shall apply to any services you subscribe to in the future (all included in the term "Services", and this Agreement becoming effective as to such services as they are accessed).
Click on the following links to go directly to the relevant License sections:
- Scope of License
- Intellectual Property & Damages
By clicking below, you confirm you have read this License, that you understand the terms therein, and that you agree to be bound by them.
ARTICLE I: SCOPE OF LICENSE
Section 1.01 -- Grant of License: We grant you a non-exclusive and non-transferable limited license to utilize the Service by accessing the Software and related user's guide if any ("Documentation") during the License Term for the sole purpose of providing your clients ("Clients") and their pets with better veterinary medicine. The term "Software" is defined as the executable code which drives the Services we make available to you (whether now, or from time to time).
Section 1.02 Delivery & Acceptance: Depending on the nature of the Services, we will either give you the ability to download the Software directly, or we will load and make the Software available for access (in either case, defined as "Implement" or derivation thereof), to or on a single computer at each Location (such term defined as the one or more hospital(s) or clinic(s) named in the PetSites registration application ("Registration") you completed, or as may be added/changed from time to time). Once Implemented, the Software shall be deemed delivered and accepted by you.
Section 1.03 --Technical Specifications: You agree to maintain the minimum technical requirements as stated in the Registration at your own cost. We may modify such requirements upon sixty (60) days notice to you. It shall be your responsibility to meet any new requirements at your own cost.
Section 1.04 -- Authorized Use: You shall prevent anyone from accessing the Software or Documentation who is not an employee of yours specifically authorized to: (a) access it for the purpose for which the Services were subscribed; (b) train other employees on its use; or (c) demonstrate its performance, utility, and function. These purposes shall be the only authorized uses of the Software, and you shall not allow any other use by anyone.
Section 1.05 -- Site Only: You will use the Software only for serving Clients of the Location. You may utilize the Services remotely, using your own telecommunication means to access the Software via a modem or similar device. Except for such access, you will not allow any other remote access.
Section 1.06 Data Access and Privacy: To provide you with Services, we will need (a) ongoing remote electronic access to a computer at your Location which holds all of your Client and pet data, including their medical records (collectively "Data"), and (b) periodic transferring of Data to us. You agree to provide us such access, and consent to the transferring of Data. You understand that your failure to allow ongoing and continuous access will prevent you from using the Services, and make any information retrievable by you (and your Clients, if such option is selected by you) from the Software wrong and/or inaccurate. You also agree that the transferred Data may reside either on our company's servers, or on the servers of Veterinary Information Network, Inc., our technology and veterinary medicine partner company ("VIN"). Whether Data is transferred to us or VIN, we confirm that as between us, VIN, and you, Data belongs to you, and is provided to us or VIN only on the following conditions: (a) that we encrypt or otherwise protected it when transferred; (b) that wherever it resides, it be safeguarded with data security protocols that meet or exceed industry standards; (c) that it be disclosed to our or VIN's personnel only on a need-to-know basis; (d) that we use any information that identifies individual Clients only to provide Services and support the Software; and (e) that we may use any information that does not identify individual Clients only for veterinary medicine research conducted at VIN's direction. We specifically confirm that Data may not be shared, sold, rented, or otherwise disclosed to anyone by us or by VIN except as provided for above, irrespective of whether or not it identifies individual Clients (e.g., we will not provide Data to any distribution, marketing or pharmaceutical companies).
Section 1.07 -- Service & Support: We will provide you with telephone and e-mail support for technical issues at no charge. You will provide all support to Clients who require technical assistance with usage, if any, of the Software. We will respond to your requests for support during our normal business hours.
Section 1.08 Client Communications & Content: We will not make any contact with Clients except as may be directed and authorized by you. You are solely responsible for obtaining individual Client consent prior to utilizing the Services on anyone's behalf, although we will assist you in obtaining such consent through a "click-to-accept" agreement on Client's first access to any of the Software. You are responsible for all data entered into the Software (including its accuracy) and for any communications sent to Clients using the Services. You are also responsible for meeting all applicable federal, state, and local laws and regulations pertaining to this License, for communicating with Clients, and for the practice of veterinary medicine.
ARTICLE II: PAYMENT
Section 2.01 Fees & Taxes: You agree to pay the fees for all Services subscribed to now and in the future. We may increase fees only by providing you at least ninety (90) day notice. You agree to pay any taxes related to the Software and Services.
ARTICLE III -- TERMINATION
Section 3.01 -- Termination Limitations: This License may only be terminated as provided under this Article III.
Section 3.02 Term & Termination: This License shall be valid from the Effective Date though the subscribed term, and shall continue thereafter on a month-to-month basis ("License Term"). Either party may terminate it at any time, with or without cause, by providing one month's notice to the other party.
Section 3.03 -- Destruction of Software upon Termination: Upon termination or cancellation of this License, you agree to destroy all Software provided to you under this License, and you agree to confirm that in writing if asked.
Section 3.04 Data on Termination: Upon termination or cancellation of this License, you will have access to your Data for a minimum of 60 days. It is your responsibility, at your sole cost, to make copies of any Data for your use prior to end of such 60 day period.
ARTICLE IV: WARRANTY
Section 4.01 -- Warranty: We warrant that the Software shall perform as represented in the Documentation, that the services we provide will be performed on a best efforts basis, and that we will conform to the standards generally observed in the industry for similar services.
Section 4.02 -- Original Development: We also represent and warrant that we own the Software exclusively and that it will not infringe upon or violate any patent, copyright, trade secret or other property right of any third party.
Section 4.03 -- WARRANTY LIMITATION: THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY.
Section 4.04 -- Indemnification: We will indemnify and hold you harmless against any liability arising from our negligence related to, or from any claim against you by any third party for, violations of trade secrets, proprietary information, trademark, copyright or any patent rights resulting in your use of the Software. If your quiet enjoyment and use of the Software is disrupted as a result of a third party claim, we will perform one or all of the following actions within one year of the date such third party's claim is discovered by you and communicated to us in writing:
(1) Replacement: Replace the Software by Implementing a non-infringing software product of equivalent functional and performance capability of the Software;
(2) Modification: Modify the Software to avoid the infringement without eliminating the main functional and performance capabilities of the Software as described in the Documentation;
(3) Obtain License: Obtain a license from the third party claiming infringement for your use of the Software;
(4) Termination: Terminate this License without further obligation to you.
The above requirement for us to indemnify and hold you harmless shall your only entitlement to indemnification and hold harmless from us, regardless of the legal theory under which a claim may be brought for such remedy.
Section 4.05 -- Backup: Although Data may be transferred to us or to VIN, you understand that such transfer is not to be relied upon as a back-up service for Data. We will not, and do not, provide such services. You shall be solely responsible for maintaining proper back-up of Data at your own expense.
ARTICLE V: INTELLECTUAL PROPERTY & DAMAGES
Section 5.01 -- Ownership and Title: Title to the Software and Documentation including ownership rights to patents, copyrights, trademarks and trade secrets therein shall be our exclusive property.
Section 5.02 -- Reverse Engineering: You will not reverse engineer, disassemble, or decompile the Software, or derive source code from it.
Section 5.03 -- Confidentiality: You understand that the Software and the Documentation may contain information that may be trade secret and proprietary to us. You agree not to disclose such information except to those we have expressly authorized to receive such information. You will not remove or alter any copyright notices or proprietary legends affixed to the Software.
Section 5.04 -- Copies: You may not copy the Software and Documentation for any purpose, and you may not allow anyone else to do so, without our prior written consent.
Section 5.05 -- Indemnification: Except as provided in Section 4.04 above, you will defend, indemnify and hold us harmless against any damages or liability we suffer that arises from your use, and/or your Clients use, of the Software or Documentation (including but not limited to any liability arising from inaccurate Data, and from your failure to allow Access as required under section 1.06 above)
Section 5.06 -- Limitation of Damages: You agree and understand that we will not be liable for any lost profits, or incidental or consequential damages resulting from, or arising out of, our Implementing the Software, or your access or use of it (or your Client's access or use, as may be relevant). Neither of us shall be liable to anyone for any failure to perform obligations under this License because of circumstances beyond our control, including (without limitation) natural disaster, terrorism, labor disputes, war, declarations of governments, transportation delays, computer or telecommunications failure, or misuse of the Software or Documentation by you or your employees, agents, or Clients.
Section 5.07 -- Continuation: The terms and provisions of this Article shall survive termination of this License.
ARTICLE VI: MISCELLANEOUS
Section 6.01 -- Cooperation: You agree to reasonably cooperate with us, and provide assistance, to allow us to meet our obligations under this License.
Section 6.02 -- Assignments: You may not assign your rights under this License without our prior written consent.
Section 6.03 -- Entire License: This License contains our entire understanding and supersedes any prior verbal or written agreements between us concerning licensing of the Software or the Services.
Section 6.04 -- Equitable Remedies and Waiver: You understand and agree that since damages at law may be an inadequate remedy, we have the right of specific performance, injunction or other equitable remedy in the event of your breach of this License. Waiver of breach of this License shall not constitute waiver of another breach. Failing to enforce a provision of this License shall not constitute a waiver or create an estoppel from enforcing such provision.
Section 6.05 Amendments; Modifications; Severability: Waivers, alterations, modifications or amendments of a provision of this License shall not be binding unless made in writing and signed by an authorized representative of both parties. If a provision of this License is rendered invalid, the remaining provisions shall remain in full force and effect.
Section 6.06 -- Governing Law & Arbitration: This License is governed by the laws of California and venue shall be any state court of proper jurisdiction in Yolo County, or federal court of proper jurisdiction in Sacramento County. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the commercial Arbitration Rules of the American Arbitration Association, before a single arbitrator, in Davis, California. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Only an arbitrator well versed in technology matters generally, and Internet technology specifically, shall be qualified to hear the dispute.
Section 6.07 -- Notice: Notices shall be in writing and shall be deemed delivered in person when delivered by courier or mailed postage prepaid by Certified or Registered Mail, Return Receipt Requested, to the following person and address: If to you, then to your attention at any Location; if to us, to the attention of "Legal Department" at the contact address reflected on our web site www.vin.com/vinx. Notice shall be deemed given on the date of receipt, as evidenced in the case of Certified or Registered Mail by Return Receipt.
Section 6.08 -- Relationship of the Parties: Our relationship is that of licensee and licensor. Nothing herein shall be construed as creating partnership, employment relationship, or agency relationship between us, or as authorizing either party to act as agent for the other. Each party maintains its separate identity.
Section 6.09 -- Litigation Expense: In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation and arbitration, including attorney fees (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration). It is the express intent of the parties that neither side be awarded any attorney fees, regardless of who is deemed victorious.