Terms of Service
Last updated: September 7, 2019
Welcome to the Terms of Service (the “Terms”) for the website located at (the “Site”) and the related mobile site operated on behalf of Per Diem VetMed LLC (“Company,” “we,” “us” and “our”), together with any content, tools, features, functionality, software applications, resources and services offered on or through our Site and our mobile site (collectively, the “Company Service”).
Please note that Section 13 contains an arbitration agreement and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) that you waive your right to participate in class actions, class arbitrations, or representative actions. You have the right to opt-out of arbitration as explained in Section 13.
1. Acceptance of Terms; Modifications.
1.1 Acceptance of Terms. These Terms govern your access to and use of the Company Service, whether you access it from the Site, our mobile website, or any other access point we make available to you. Please read these Terms carefully, as they include important information about your legal rights. BY ACCESSING OR USING THE COMPANY SERVICE, YOU ACCEPT THESE TERMS. IF YOU DO NOT UNDERSTAND OR AGREE WITH THESE TERMS, YOU SHOULD NOT ACCEPT THEM, IN WHICH CASE YOU DO NOT HAVE THE RIGHT TO USE THE COMPANY SERVICE.
For purposes of these Terms, “you” and “your” means you as the user of the Company Service. If you use the Company Service on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity's behalf.
1.2 Modifications. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Site. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Company Service after the modifications have become effective will be deemed your acceptance of the modified Terms.
2. Company Service.
2.1 Nature of the Company Service. The Company Service allows veterinary hospitals and clinics (“Veterinary Hospitals”) and providers of veterinary professional-related services (“Per Diems”, and together with Veterinary Hospitals and any other users of the Company Service, the “Users” ) to find, communicate with and interact with each other. The Company Service includes our booking services. We charge fees for some aspects of the Company Service, as described below in Section 9.
2.2 No Veterinary Services. The Site is a neutral venue for Per Diems and Veterinary Hospitals. The Company is not a Per Diem and does not provide veterinary care services. Per Diems are independent contractors of Veterinary Hospitals and not employees, partners, representatives, agents, joint ventures, independent contractors, or franchisees of the Company. We make no representations or warranties about the quality of animal care, veterinary skills, client communication, transportation, or other services provided by Per Diems (“Per Diem Services”), or about your interactions and dealings with other Users. Though we provide general guidance on our Site to Per Diems about service and to Veterinary Hospitals about selecting and engaging Per Diems, the Company does not employ, recommend or endorse Per Diems or Veterinary Hospitals or supervise, direct, control or monitor the Per Diem Services. The Company will not be responsible or liable for the performance or conduct of Per Diems or Veterinary Hospitals, whether online or offline, and expressly disclaims any responsibility and liability for the Per Diem Services in any manner, including but not limited to a warranty of good and workmanlike services, warranty of quality or fitness for a particular purpose, or compliance with any law, rule, regulation, or code. We conduct an initial review of Per Diem profiles and we may facilitate background checks on Per Diems conducted by a third party (in accordance with Section 10), but, except where explicitly specified in the Company Service (and then only to the extent specified), do not otherwise screen Per Diems or Veterinary Hospitals. You should exercise caution and use your independent judgment before engaging a Per Diem, providing services (including, as applicable, Per Diem Services), or otherwise interacting with other Users via the Company Service. Veterinary Hospitals and Per Diems are solely responsible for making decisions that are in the best interests of themselves and their patients.
2.3 Release. WE HEREBY EXPRESSLY DISCLAIM, AND YOU HEREBY EXPRESSLY RELEASE US FROM, ANY AND ALL LIABILITY WHATSOEVER FOR ANY CONTROVERSIES, CLAIMS, SUITS, INJURIES, LOSS, HARM AND/OR DAMAGES ARISING FROM AND/OR IN ANY WAY RELATED TO YOUR INTERACTIONS OR DEALINGS WITH OTHER USERS AND THE ACTS AND/OR OMISSIONS OF PER DIEMS AND VETERINARY HOSPITALS, WHETHER ONLINE OR OFFLINE. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE, PURCHASE AND/OR PROVISION OF PER DIEM SERVICES IS AT YOUR SOLE AND EXCLUSIVE RISK.
2.4 Transactions are Between Veterinary Hospitals and Per Diems. The Company Service may be used to find and offer Per Diem Services and to facilitate payment, but all transactions conducted via the Company Service are between Veterinary Hospitals and Per Diems. Except for the limited refunds of the Company’s fees described in Section 9.5 and the “Reservation Protection” specified in Section 9.5, you agree that the Company has no liability for damages associated with the Company Service or any Per Diem Services (which may include bodily injury to, or death of, a veterinary patient) or resulting from any other transactions between Users of the Company Service.
2.5 Bookings. Veterinary Hospitals and Per Diems transact with each other on the Company Service when they both agree to a “booking” that specifies the fees, time period, cancellation policy, and other terms for provision of Per Diem Services via the booking mechanism provided on the Company Service (a “Booking”). Once you complete a Booking, you agree to honor the price and other terms of that Booking.
2.6 Veterinary Hospitals are Solely Responsible for Evaluating Per Diems. Veterinary Hospitals are solely responsible for evaluating the suitability of Per Diems for the Per Diem Services they offer to provide. Though the Company performs a limited review of applications to become Per Diems and facilitates Per Diem background checks conducted by a third party, any such screening is limited, and the Company does not warrant that any such screening is accurate, complete, conclusive or up-to-date. Similarly, the Company does not endorse reviews of Per Diems by other Users that may be available via the Company Service, and the Company makes no commitments that such reviews are accurate or legitimate.
3. Eligibility; Legal Compliance.
By accessing and using the Company Service, you represent and warrant that you: (a) are 18 years of age or older, (b) reside in the United States or any of its territories, and (c) will comply with all laws, rules, regulations and codes applicable to your activities conducted through the Site. For Veterinary Hospitals, this means, among other things, that you will ensure that you have complied and will comply with all federal, state, county, municipal and other laws, rules, regulations, and codes that are applicable to you, and you have obtained all business licenses, permits, and fulfilled any other necessary requirements to legally provide veterinary services. For Per Diems, this includes that you are legally eligible to work in the jurisdiction where you provide Per Diem Services, you have complied and will comply with all federal, state, county, municipal and other laws, statutes and ordinances that are applicable to you, and you have obtained all business licenses, permits, and fulfilled any other necessary requirements to legally provide Per Diem Services. You acknowledge that the Company is entitled to rely on these representations, and is not responsible to ensure that all Users have met these eligibility conditions.
4. License Grant; Restrictions; Suspension and Termination.
4.1 License Grant. Subject to your compliance with these Terms, the Company hereby grants to you, a personal, worldwide, royalty-free, non-assignable, non-sublicensable, non-transferable, and non-exclusive license to use the software provided to you as part of the Company Service. This license has the sole purpose of enabling you to use and enjoy the benefit of the Company Service as provided by us, in the manner permitted by these Terms and subject to the restrictions described in Section 4.2 below.
4.2 Restrictions. When you use the Company Service, you agree:
To access or use the Company Service only for its intended purposes and only as expressly permitted by these Terms.
Not to download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Company Service.
Not to duplicate, decompile, reverse engineer, disassemble or decode the Company Service (including any underlying idea or algorithm), or attempt to do any of the same.
Not to use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image or other proprietary notation displayed on or through the Company Service.
Not to use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Company Service.
Not to access or use the Company Service in any manner that could disable, overburden, damage, disrupt or impair the Company Service or interfere with any other User’s access to or use of the Company Service or use any device, software or routine that causes the same.
Not attempt to gain unauthorized access to, or interfere with, damage or disrupt the Company Service, accounts registered to other Users, or the computer systems or networks connected to the Company Service.
Not to circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Company Service.
Not to use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Company Service to monitor, extract, copy or collect information or data from or through the Company Service, or engage in any manual process to do the same.
Not to submit viruses, trojan horses, worms, logic bombs or other malicious code or materials that are technologically harmful to or through the Company Service.
Not to use the Company Service, or engage with other Users of the Company Service, for purposes that violate the law.
Not to use the Company Service to arrange for the provision and purchase of services with another User, then complete transactions for those services offline.
Not to use the Company Service for purposes of competing with the Company.
Not to post reviews about Per Diems that are not based on your personal experience or that are intentionally inaccurate.
Not to post content or materials that are pornographic, threatening, harassing, abusive, or defamatory, or that contain nudity or graphic violence, incite violence, violate intellectual property rights, or violate the law or the legal rights (for example, privacy rights) of others.
Not to post “spam” or other unauthorized commercial communications.
To use the Company Service only for your own purposes, and not to impersonate any other person or entity.
Not to transfer or authorize the use of your Account for the Company Service by any other person or entity.
Not to provide false information in your profile on, or registration for, the Company Service.
Not to solicit another User’s username and password for the Company Service.
Not to violate any applicable law, rule, regulation or code in connection with your access to or use of the Company Service.
4.3 Suspension and Termination. You understand and agree that we have no obligation to provide the Company Service to you, nor any obligation to continue providing it once we have begun. If you breach any provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may suspend, disable, delete or terminate your Account or your access to the Company Service (or any part of the foregoing) with or without notice, for any or no reason, in its sole discretion. If the Company deletes your Account or terminates your access to the Company Service for any suspected breach of these Terms by you, you are prohibited from re-registering for the Company Service under a different name. In the event of termination or Account deletion for any reason, the Company may, but is not obligated to, delete any of Your Content. The Company shall not be responsible for the failure to delete or the deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.
5. User Accounts; Registration; Account Security.
5.1 Creating and Safeguarding your Account. In order to use some aspects of the Company Service, you will be required to create an account with a username, password, and user profile (“Account”). If you elect to use the Company Service, you agree to provide accurate and complete information about yourself for your Account and keep this information up-to-date. You can access, edit and update your Account via the following means. For Per Diem Members, click "Profile Setup" for initial setup or to update; For Veterinary Clinic Members, email firstname.lastname@example.org to update.You agree not to impersonate anyone else and not to maintain more than one Account (or, if the Company suspends or terminates your Account, not to create further accounts). You are solely responsible for maintaining the confidentiality of your username and password for the Company Service, and you agree not to authorize anyone else to use your username and password. You are solely responsible for any and all activity on your Account. You agree to notify us promptly at email@example.com if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in the case of any actual or suspected unauthorized use of your Account.
5.2 Per Diem Subscriptions. If you are a Per Diem, the Company Service will be offered to you on a subscription basis. In order to create an Account and use the Company Service, you agree to pay us the applicable fees and taxes in accordance with Section 9. Failure to pay these fees and taxes may result in the suspension and/or termination of your Account and access to the Company Service.
7. Ownership and Content.
7.1 Ownership of the Company Service. The Company Service, including its “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Company and/or its licensors retain all right, title and interest in and to the Per Diem Vet Med Service (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. , We and our licensors reserve all rights in connection with the Company Service and its content (other than Your Content), including, without limitation, the exclusive right to create derivative works. Except for your rights to access and use the Company Service as expressly permitted in these Terms, nothing in these Terms conveys any ownership or other rights to our intellectual property or proprietary rights to anyone, including you.
7.2 Company Trademarks. The Company owns all rights in and to its trademarks, service marks, brand names, slogans and logos (the “Company Marks”). Other names, slogans and logos that appear on the Company Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. [If you are a Per Diem, the Company grants you, for so long as you are in good standing on the Company Service, a limited, revocable, non-exclusive, non-transferable license to use the Company Marks solely: (a) in the form incorporated into goods, including customizable marketing collateral (business cards, signage etc.), and/or (b) in any other manner specifically authorized in writing via the Company Service. As a condition of exercising such license, you agree that (x) all goodwill associated with your use of the Company Marks inures solely to the benefit of the Company, and (y) such license immediately terminates upon your ceasing to be a Per Diem in good standing, whether at your own option or because the Company suspends or terminates your rights to use the Company Service.
7.3 Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Company Service (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Company Service or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
7.4 Your Content. In connection with your use of the Company Service, we may require or allow you (or someone else on your behalf) to post, submit or upload text, photographs, images, videos, reviews, information, materials or other content to be made available through the Company Service (collectively, “Your Content”). For example, Per Diems are invited to create a public profile page with a photograph and other information, while Veterinary Hospitals may submit reviews of Per Diems.
7.6 Release. If your name, voice, image, persona, likeness, or performance is included in any of Your Content, you hereby waive, and release the Company and its Users from, any claim or cause of action, whether known or unknown, for defamation, copyright infringement, invasion of the rights of privacy, publicity, or personality, or any similar claim arising out of the use of Your Content in accordance with the license in Section 7.5 and the other provisions of these Terms.
7.7 Your Representations and Warranties about Your Content. By posting or submitting Your Content through the Company Service, you represent and warrant that (a) you have, or have obtained, all rights, licenses, consents, permissions, releases, power and/or authority necessary to grant the rights granted herein for Your Content, and (b) Your Content does not violate the law or these Terms. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and grant us the license granted in Section 7.5.
7.8 Right to Remove or Screen Your Content. Though we are not obligated to do so, we reserve the right to monitor, screen, edit and/or remove Your Content on the Company Service. Our enforcement of these Terms with respect to Your Content is at our sole discretion, and failure to enforce the Terms in one instance does not create a waiver of our right to enforce them in another instance. We have no obligation to retain or provide you with copies of Your Content, nor will we have any liability to you for any deletion, disclosure, loss or modification to Your Content. It is your sole responsibility to maintain backup copies of Your Content.
7.9 Reviews. If you are a Per Diem, we have no obligation to provide you with the content of any reviews about you submitted by other Users of the Company Service, whether before or after termination of your Account for the Company Service. We will have no liability to you for any deletion, disclosure, loss or modification of these reviews. We reserve the right to screen, edit or remove these reviews from the Company Service at any time.
7.10 Notice of Infringement – DMCA Policy. If you believe that any text, graphics, photos, audio, videos or other materials or works uploaded, downloaded or appearing on the Company Service have been copied in a way that constitutes copyright infringement, you may submit a notification to our copyright agent in accordance with 17 USC 512(c) of the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
(a) identification of the copyrighted work that is claimed to be infringed;
(b) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Company Service;
(c) information for our copyright agent to contact you, such as an address, telephone number and email address;
(d) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
(e) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
(f) the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
Notices of copyright infringement claims should be sent by mail to: Per Diem VetMed, LLC, Attn: Copyright Notice, 57 West 105th St 3B, New York, NY 10025; or by e-mail to firstname.lastname@example.org. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the Accounts of Users who repeatedly infringe copyrights or intellectual property rights of others.
A user of the Company Service who has uploaded or posted materials identified as infringing as described above may supply a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA. When we receive a counter-notification, we may reinstate the posts or material in question, in our sole discretion. To file a counter-notification with us, you must provide a written communication (by fax or regular mail or by email) that sets forth all of the items required by sections 512(g)(2) and (3) of the DMCA. Please note that you will be liable for damages if you materially misrepresent that content or an activity is not infringing the copyrights of others.
8. Phone, Text and Mobile Communications.
You are responsible for providing the mobile device, wireless service plan, software, internet connections and/or other equipment or services that you need to use the Company Service. We do not guarantee that the Company Service can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the Company Service will be available in any particular geographic location. As part of the Company Service, you may receive telephone or text messages, picture messages, alerts, emails or other types of messages directly sent to you. You agree that the Company may contact you by electronic means, including autodialed text messages and phone calls, even if your phone number is on the do-not-call list, in connection with your use of the Company Service, including for marketing purposes. You acknowledge that, when you use the Company Service, your wireless service provider may charge you fees for data, text messaging and/or other wireless access. Please check with your wireless service provider to determine what fees apply to your access to and use of the Company Service. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the Company Service on your mobile device.
Notwithstanding the foregoing, if you are a Per Diem, certain aspects of the Company Service may require that you receive service-related messages by text. In that case, you must send an email to email@example.com from the email address used to establish your Account, that includes your mobile telephone number and a request to be deactivated.
In the event you deactivate a mobile phone number provided to us for this purpose, you agree to update your Account information promptly to ensure that messages are not sent to the person who acquires your old number.
9. Fees, Payment, Cancellations and Refunds.
9.1 Currency; Payment. All fees, taxes, deductible amounts and other payments referenced on, or charged through, the Company Service are listed and payable in USD. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Payment can be made by credit card, debit card, or through other means that we may make available. You authorize us to charge your credit card or other payment method for fees you incur on the Company Service as they become due and payable. You are responsible for maintaining up-to-date payment information. If we cannot charge you for fees when due because your payment information is no longer valid, or if we do not receive your payment when due, then you understand that neither the Company nor the Per Diem will be responsible for any failure to provide services associated with those fees. Except as expressly provided in these Terms, all fees paid via the Company Service are non-refundable once paid.
9.2 Fees for Veterinary Hospitals. Veterinary Hospitals may purchase Per Diem Services from a Per Diem by completing a Booking as described in Section 2.5. If you are a Veterinary Hospital, you enter into a transaction with the Per Diem when you request a Booking, and you agree to pay the total fees indicated in the Booking. Fees for Per Diem Services are determined by the Company Service. The total amount Veterinary Hospitals are charged for a Booking also includes a service fee payable to the Company. Where required by law, the amount charged may also be inclusive of applicable taxes. We reserve the right to change our subscription plans or adjust pricing for the Company Service in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise provided in these Terms, any price changes or changes to your subscription plan will take effect following reasonable notice to you.
9.3 Fees for Per Diems. Per Diems agree to provide Per Diem Services to a Veterinary Hospital by agreeing to a Booking as described in Section 2.5. Once the Booking is completed, you agree to honor the price set forth in your Booking. The purchase of Per Diem Services is a transaction between the Veterinary Hospital and the Per Diem. The Company’s role is to facilitate payments from Veterinary Hospitals to Per Diems as limited payment agent for the Per Diem. We collect payment from the Veterinary Hospital at the time of Booking and (except to the extent of any payment hold pursuant to Section 9.6) remit payment to the Per Diem’s account on the Company Service no longer than 14 days after completion of the service period indicated in the Booking. Per Diems are charged a monthly subscription fee as described in Section 9.4.
9.4 Service Fees. We charge service fees for some aspects of the Company Service. If you are a Per Diem, except where otherwise specified via the Company Service, our service fee is billed monthly in the form of a subscription fee. If you are a Veterinary Hospital, the total amount charged for a Booking also includes a service fee payable to the Company.
9.4.1 Per Diem Subscription Fees. If you are a Per Diem, you agree to pay us the applicable fees and taxes in accordance with this Section 9. You agree that (a) we may store and continue billing your payment method (e.g. credit card) to avoid interruption of the Company Service, and (b) we may calculate taxes payable by you based on the billing information that you provide us at the time of purchase. We reserve the right to change our subscription plans or adjust pricing for the Company Service in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise provided in these Terms, any price changes or changes to your subscription plan will take effect following reasonable notice to you.
9.4.2 Per Diem Subscription Renewals and Cancellations. If you are a Per Diem, you agree that your subscription will automatically renew at the subscription period frequency referenced on your subscription page (or if not designated, then monthly), and your payment method will automatically be charged at the start of each new subscription period for the fees and taxes applicable to that period. To avoid future subscription charges, you must cancel your subscription 14 days before the subscription period renewal date by submitting a cancellation request under Contact Us.
9.4.3 No Per Diem Subscription Refunds. Except as expressly set forth in these Terms, if you are a Per Diem, payments by you for any subscriptions to the Company Service are nonrefundable and there are no credits for partially used periods. Following any cancellation by you of your subscription, however, you will continue to have access to the Company Service through the effective date of cancellation.
9.4.4 Free Trials. If you are a Per Diem, you can sign up for a trial Account for the Company Service and your trial period starts on the day you create the trial Account and lasts for 30 days. If you are on a trial, you may cancel at any time until the last day of your trial by following the cancellation procedures outlined in Section 9.4.2 above. If you cancel your trial Account, you acknowledge and agree that we may delete all of Your Content or data associated with your Account at the end of the trial. If you do not cancel your trial Account and we have notified you by e-mail or phone that the Account will be converted to a paid subscription at the end of the trial period and that you will be charged for the first month price set forth by the Company Service, you authorize us to charge your credit card for continued use of the paid Company Service. You may, however, cancel your subscription in accordance with Section 9.4.2 of these Terms.
9.5 Booking Cancellations and Refunds.
Per Diems initially set their Booking availability at initial signup. Per Diems can then update their availability schedule on the Wix App, by emailing firstname.lastname@example.org, and/or Wix Calendar pages. Per Diems are responsible for updating their availability in a timely manner to prevent bookings that cannot be upheld. Veterinary Hospitals initiate Bookings through the Company Service based on Per Diem availability. Payment for Per Diem Services and Company service charges is due at the time of Booking by the Veterinary Hospitals.
9.5.1 Booking Cancellations by Per Diem. If a Per Diem cancels a Booking prior to or during the service period identified in the Booking, we will refund to the Veterinary Hospital the fees paid by the Veterinary Hospital at the time of Booking for Per Diem Services not provided, as well as any service charge paid to the Company. Per Diem cancellations are taken seriously. If you are a Per Diem, you acknowledge that cancellation by you may result in a review of your Account and, if we deem it appropriate, suspension or termination of your access to the Company Service.
9.5.2 Reservation Protection. The Company can help a Veterinary Hospital find replacement Per Diems when Per Diems cancel Bookings near the start date of the service period identified in the Booking (“Reservation Protection”). The availability of the Reservation Protection depends on the timing of the cancellation and the type of Per Diem Services provided and therefore we can make no guarantees.
9.5.3 Booking Cancellations by Veterinary Hospital. If a Veterinary Hospital cancels a Booking prior to the service period specified in a Booking, we will refund fees paid by the Veterinary Hospital in accordance with the cancellation policy specified in the Booking on the Company Service.
9.5.4 Force Majeure. The cancellation policies described herein may not apply in the event of certain emergency situations beyond the reasonable control of Per Diems and/or Veterinary Hospitals that make it impossible or impractical to perform agreed Bookings, such as evacuations resulting from hurricane, wildfire or other natural disaster. In such cases the Company may, in its reasonable discretion, issue refunds under terms that vary from the cancellation policy specified in the Booking.
9.5.5 Refunds for Substandard Services. If we determine in our sole discretion that a Per Diem has failed to provide Per Diem Services as agreed with the Veterinary Hospital in the Booking or otherwise in accordance with these Terms, then we may, in our sole discretion, cancel a Booking and/or issue a full or partial refund to a Veterinary Hospital.
9.5.6 General Terms for Cancellations. If you wish to cancel a Booking, you should use the mechanisms available through the Company Service to do so on the Contact Us form, or by emailing us at email@example.com for Per Diems or the My Bookings member page for Veterinary Hospitals. For purposes of the policies and terms in this Section 9.5, the date of cancellation is the date that a User cancels through the Company Service, regardless of any separate communications between Users outside of the Company Service.
9.5.7 Payment Disputes; Payment Outside of the Company Service. The Company issues payments to Per Diems within 14 days after completion of a Booking. Once these amounts have been disbursed, any further payment disputes are between the Veterinary Hospital and Per Diem, and the Company has no obligation to mediate or facilitate any resolution or payments. Further, the Company has no responsibility or liability with respect to any tips, bonuses, or other payments made outside of the Company Service.
9.6 Payment Holds. If you are a Per Diem, the Company reserves the right to issue a hold on amounts otherwise payable to you pursuant to Section 9.3 if there is a reasonable suspicion of fraudulent activity involving your Account(s) or for other similarly compelling reason involving protection of the Company, our Users or third parties. We may also recommend that third party payment providers restrict your access to funds in your Account under the same circumstances.
9.7 Resolutions. As part of resolving a claim, Per Diems and Veterinary Hospitals may offer or request refunds, damage payments or other accommodations related to their Bookings. In such cases, each of Per Diem and Veterinary Hospital agree that it is responsible for performing its agreements and obligations, and that the Company is not party to any such agreement and has no obligation to perform any term thereof.
9.8 Taxes. Except for taxes on the Company’s income and gross receipts generally, you acknowledge that you are responsible to pay any taxes that arise as a result of your purchase, provision, or use of services via the Company Service. This includes, without limitation, any form of sales tax or income tax on fees paid or received through the Company Service.
10. Background Checks.
10.1 Third Party Background Checks. The Company may, but is not obligated to, provide Veterinary Hospitals with access to third party consumer reporting agencies that perform, among other things, criminal records checks, sex offender registry checks, motor vehicle records checks and identification verifications (collectively, “Background Checks”). We do not provide, and are not responsible or liable in any manner for, the Background Checks, and we do not endorse or make any representations or warranties regarding the reliability of such Background Checks or the accuracy, timeliness or completeness of any information in the Background Checks. We do not independently verify information in the Background Checks. All Background Checks may require payment of a separate fee by the Veterinary Hospital to the third party consumer reporting agency that is performing the Background Check.
If you undergo a Background Check via the Company Service, you hereby consent to the collection, use and disclosure of the information in the Background Checks, and you agree to provide complete and accurate information for your Background Check. You understand and agree that the Company may, in its sole discretion, rely on the information in the Background Checks in deciding whether to suspend or terminate or investigate a complaint about a Per Diem, but also that we are not obligated to do so, and are not responsible or liable in any way in the event that any information in any Background Check is not accurate, timely or complete. If you are the subject of a Background Check, you may contact the applicable third-party consumer reporting agency to dispute the accuracy, timeliness or completeness of such information. You agree that the Company’s rights and obligations under the Arbitration Agreement inure to the benefit of the consumer reporting agency used for Background Checks in respect of any claim that would be subject to the Arbitration Agreement set forth in Section 13 if brought against us. The Company reserves the right to suspend or terminate your Account or access to the Company Service based on information in the Background Checks or for any other reason, or no reason, in our sole discretion.
10.2 Limitations. Veterinary Hospitals remain fully responsible to evaluate and investigate their Per Diems. Be aware of the following limitations in Background Checks: Except as otherwise expressly provided in these Terms or through the Company Service, the Company does not automatically run Background Checks on any Per Diems. Background Checks may vary by type, breadth and depth. Records not available to third-party agencies conducting Background Checks will not be included in the results. Not all arrest logs and records, conviction and correction records, sex offender registries and motor vehicle records are available in all jurisdictions. In many jurisdictions there is a delay before arrest logs and records, conviction and correction records, sex offender registries and motor vehicle records are included in Background Checks. Juvenile records and offenses for minors may not appear in the public record and are therefore not included in the results. Dismissed cases, arrests not resulting in convictions, arrests or convictions from foreign countries and nolle pros will not be reported. Traffic violations are not included unless a jurisdiction reports them as criminal offenses. In the jurisdictions where traffic violations are reported as criminal offenses, such traffic violations may be included in the results as misdemeanors or felonies.
11. Third Party Services, Links.
The Company Service may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites that display, include or make available Third Party Materials. By using the Company Service, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you. You acknowledge sole responsibility for and assume all risk arising from your use of any such Third Party Materials or third-party websites. If you have any complaints in connection with any Third Party Materials or third-party website, please contact such third party directly, or contact your state Attorney General or the Federal Trade Commission at www.ftc.gov.
12. Disclaimers, Limitations of Liability and Indemnification.
12.1 Disclaimers. Your access to and use of the Company Service is at your own risk. You understand and agree that the Company Service is provided to you on an “AS IS” and “AS AVAILABLE” basis. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY, ITS PARTNERS, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS AND LICENSORS (THE “COMPANY ENTITIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Company Service and any information and materials on the Company Service; (b) the accuracy or reliability of any opinion, advice or statement made by any party, whether online or offline; (c) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Company Service; (d) the operation or compatibility with any other application or any particular system or device; (e) whether the Company Service will meet your requirements or be available on an uninterrupted, secure or error-free basis; (f) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Company Service; (g) any damages arising from or in any way related to your interactions or dealings with other Users of the Company Service; and (h) the acts and/or omissions of Per Diems and Veterinary Hospitals, whether online or offline. In addition and without limiting the foregoing, we make no representation or warranty of any kind, whether express or implied, regarding the suitability of any Per Diem that offers per diem services via the Company Service. No advice or information, whether oral or written, obtained from the Company Entities or through the Company Service, will create any warranty or representation not expressly made herein.
12.2 Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE COMPANY SERVICE), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE COMPANY SERVICE OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE COMPANY SERVICE, INCLUDING DAMAGES RESULTING FROM RELIANCE ON INFORMATION OR CONTENT POSTED ON OR TRANSMITTED THROUGH THE COMPANY SERVICE, OR FOR ANY INTERACTIONS WITH OTHER USERS OF THE COMPANY SERVICE, WHETHER ONLINE OR OFFLINE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. EXCEPT FOR THE LIMITED REIMBURSEMENTS APPROVED BY THE COMPANY AND THE REFUND AMOUNTS PAYABLE BY THE COMPANY THAT ARE SET FORTH IN SECTION , THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE LESSER OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE COMPANY ENTITIES (SPECIFICALLY EXCLUDING AMOUNTS PAID TO PER DIEMS VIA THE COMPANY SERVICE), IF ANY, IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12.3 Indemnification. By entering into these Terms and accessing or using the Company Service, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, demands, causes of action, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law, rule, regulation or code; (b) your violation of any rights of any third party; (c) Your Content; (d) your negligence or willful misconduct; (e) your transactions and interactions, online or offline, with other Users of the Company Service; (f) your disputes with other Users of the Company Service; (g) property damage or personal injury to third parties caused by you, your patients or pets in your care or (h) your use of any Background Check information in violation of the Fair Credit Reporting Act (FCRA) or other applicable law, rule, regulation or code. You further agree that you will cooperate with us in the defense of such claims. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification under this section [12.3], and you will not settle any such claim or matter without our advance written consent.
13. Arbitration Agreement and Class Action Waiver.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH THE COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
13.1 Informal Process First. This Section 13 is referred to as the "Arbitration Agreement” in these Terms. You agree that in the event of any dispute between you and the Company Entities, you will first contact the Company and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution.
13.2 Arbitration Agreement and Class Action Waiver. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Company’s services, including the Company Service, will be resolved by arbitration. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. If there is any inconsistency between the JAMS Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and the Company are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and the Company will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis.
13.3 Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, the Company will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
13.4 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all applicable parties.
13.5 Severability. If any term, clause or provision of this Section 13 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 13 will remain valid and enforceable.
13.6 Opt-Out. You have the right to opt-out and not be bound by the Arbitration Agreement by mailing written notice of your decision to opt-out ("Opt-Out Notice") to the U.S. mailing address listed at the bottom of these Terms. The Opt-Out Notice must be sent to the Company within thirty (30) days of your registering to use the Company Service or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these Terms. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to register for the Company Service to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, the entire Arbitration Agreement will not apply with respect to you, but the remainder of these Terms will continue to apply. If you opt-out of the Arbitration Agreement, the Company also will not be bound by it.
13.7 Future Changes to this Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, you agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change will not apply to any claim that was filed in a legal proceeding against the Company prior to the effective date of the change. Moreover, if we terminate this Arbitration Agreement by removing it from these Terms, such termination will not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and will not be effective as to any claim that was filed in a legal proceeding against the Company prior to the effective date of removal.
14. Governing Law and Jurisdiction.
14.1 Governing Law. These Terms, and any dispute between you and the Company, will be governed by the laws of the State of New York, without regard to conflicts of laws rules, except that the Federal Arbitration Act will govern the interpretation and enforcement of Section 13 (Arbitration Agreement and Class Action Waiver).
14.2 Jurisdiction. Unless you and we agree otherwise, in the event that the Arbitration Agreement is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that arises between you and the Company must be resolved exclusively by a state or federal court located in the State of New York. You and the Company agree to submit to the personal jurisdiction of the courts located within New York, New York for the purpose of litigating all such claims or disputes.
15. Injunctive Relief.
You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
16. California Residents.
If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210
17. Export Laws.
You agree that you will not export or re-export, directly or indirectly, the Company Service and/or any other information or materials provided by the Company hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Company Service may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Company Service, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
Nothing in these Terms will be construed as making the Company, on the one hand, or you, on the other hand, the partner, joint venturer, agent, legal representative, employer, contractor or employee of the other. Neither you nor the Company will have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action, that will be binding on the other, except as provided for herein or authorized in writing by the party to be bound. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms will be enforceable as so modified. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by the Company of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect.
19. Contact Information.
If you have any questions about anything in these Terms, please contact us via email at firstname.lastname@example.org or by mail at Per Diem VetMed LLC, Attn: Legal, 1817 California Street 2K, San Francisco, CA 94109.