Terms of Use
SYMPHONY LICENSING AGREEMENT
THIS SOFT WARE AND WEB PAGE LICENSING AGREEMENT (hereinafter "AGREEMENT") IS A LEGAL DOCUMENT BETWEEN YOU (hereinafter "USER") AND SYMPHONY VETERINARY SPECIALTY HOSPITAL, INC., A CALIFORNIA CORPORATION DBA/ VETSYMPHONY.COM (hereinafter “SYMPHONY”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY USE SYMPHONY’S PRODUCTS AND ACCESS THE SYMPHONY WEB SITE. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING SYMPHONY PRODUCTS AND OR ACCESSING THE SYMPHONY WEB SITE. BY ACCESSING THE SYMPHONY WEB SITE OR BY ORDERING, USING AND OR ACCESSING SYMPHONY PRODUCTS YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT USE ANY OF SYMPHONY’S PRODUCTS OR ACCESS THE SYMPHONY WEB SITE. SYMPHONY MAY REVISE THIS AGREEMENT AT ANY TIME WITHOUT NOTICE. YOU SHOULD VISIT THIS WEB PAGE PERIODICALLY TO REVIEW THE AGREEMENT.
WEB SITE, PRODUCTS TERMS AND CONDITIONS OF USE
This Product and Web Site Licensing Agreement ("Agreement") is made as of the Effective Date by and between , SYMPHONY VETERINARY SPECIALTY HOSPITALS, INC., A CALIFORNIA CORPORATION DBA/ VETSYMPHONY.COM ("SYMPHONY") and you ("the User").
WITNESSETH RECITALS
WHEREAS, SYMPHONY has developed and owns certain Products and Web Site for use by the Veterinary Profession (as defined hereinafter) for use and access by User through the Internet
WHEREAS, User desires to access the SYMPHONY Web Site and use the SYMPHONY products and Web Site in accordance with the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, User and SYMPHONY hereby agree as follows:
CONFIDENTIALITY & PRIVACY POLICY
Confidential Information. VetSymphony.com is extremely sensitive to the confidential nature of the information provided to it by the User and agrees to keep all information in the strictest confidence. Additionally, although vetSymphony.com will compile the data entered on its website, such data is for internal use by vetSymphony.com only and will not be disseminated in any form, which will identify User. The parties further agree that release of any confidential information could cause damage to the User providing the Confidential Information. "Confidential Information" means information disclosed to or known by the vetSymphony.com as a consequence of or through its relationship with the User, including but not limited to, office practices, procedures, financial data or any other such confidential information. Therefore, all conditions for maintaining this confidentiality during the course of or upon termination of this Agreement is also an agreed covenant of this contract. The restrictive covenant or the provision restricting the disclosure of User’s confidential information by vetSymphony.com shall constitute an agreement separate from all others between the parties, and the existence of any claim or cause of action by the vetSymphony.com against the User under this agreement or any other agreement shall not constitute a defense to the enforcement of the terms hereof by the User. The vetSymphony.com further consents and agrees that for any violation of any of the provisions of this restrictive covenant or the provision restricting the disclosure of confidential information a temporary and/or permanent restraining order or injunction may be issued against the vetSymphony.com upon being given written notice of such violation and failure or refusal to cease such conduct in violation hereof. The parties further agree that in the event of a violation of either the restrictive covenant of the provision restricting the disclosure of confidential information that the User shall be entitled to a temporary restraining order, preliminary injunction and/or permanent injunction for the reason that both parties agree and acknowledge that the User would be without a sufficient or adequate remedy at law and that the disclosure of confidential information or violation of the restricted covenant would cause the User irreparable injury.
ARTICLE I
RECITALS AND DEFINITIONS
Section 1.01 -- Recitals: The above recitals and identification of parties are true and correct.
Section 1.02 -- Definitions: The following definitions shall apply:
(1) Access: The term "access" and variants thereof (including, without limitation, "accessing" and "accessible") shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.
(2) SYMPHONY Marks: The term "SYMPHONY Marks" shall mean trademarks, trade names, service marks and trade dresses of SYMPHONY.
(3) SYMPHONY System: The term "SYMPHONY System" shall mean computer systems and communication equipment used for hosting the SYMPHONY Web Site and providing User access to SYMPHONY Web Site, including SYMPHONY Technology, SYMPHONY Products used, stored or transmitted through the SYMPHONY System.
(4) SYMPHONY Technology: The term "SYMPHONY Technology" shall mean any and all Technology developed by or for SYMPHONY.
(5) SYMPHONY Web Site: The term "SYMPHONY Web Site" shall mean that certain Web Site developed by or for SYMPHONY based in whole or in part on the Content and the Licensed Content which is integrated with and implemented on the SYMPHONY System and accessible by User via the Internet, including information, data, communication and text transmitted through the SYMPHONY Web Site and used or stored on the SYMPHONY System.
(6) Content: The term "Content" shall mean SYMPHONY Technology incorporated into the SYMPHONY Web Site and SYMPHONY Technology used, stored on or transmitted through the SYMPHONY System and shall include all SYMPHONY Software products.
(7) Effective Date: The term "Effective Date" shall mean the date the User first orders, purchases, uses SYMPHONY Products and or accesses the SYMPHONY Web Site.
(8) Internet: The term "Internet" shall mean that certain global network of computers commonly referred to as the Internet.
(9) Licensed Content: The term "Licensed Content" shall mean third party information, data, communications, text, graphics, images, visuals, video, audio, computer software, coding, script and other materials incorporated in whole or part into the SYMPHONY Web Site or otherwise.
(10) Link: The term "Link" shall mean that certain text, icon or graphic in the SYMPHONY Web Site (visible or transparent) that upon selection or search, links or associates SYMPHONY Web Site to an off-screen or third party Web Site, document, text, image, sound or video.
(11) Materials: The term "Materials" shall mean the SYMPHONY Web Site and the Content.
(12) Policy Statement: The term "Policy Statement" shall mean that certain written statement of policies (in printed or electronic form) concerning access to the SYMPHONY Web Site and use of SYMPHONY Products as may be adopted and made available by SYMPHONY and as modified by SYMPHONY from time-to-time.
(13) Technology: The term "Technology" shall mean (i) evaluation, technical, scientific, engineering, marketing, financial and business reports, plans, studies, diagrams, or flow charts; (ii) all forms and types of scientific, technical, economic, business, or engineering information and data; and (iii) computer software, source code, object code, executable code, software libraries, improvements, documentation, databases, database designs, data dictionaries, data models, fields, records, scripts, texts, interpreters, interfaces, interface designs, trade dress, interface specifications, codes, classes, categories, screen displays, sound recordings, visual works, graphic images, audio, sound recordings, video, patterns, plans, compilations, program devices, formulas, designs, prototypes, methodologies, techniques, ideas, solutions, concepts, processes, procedures, programs, adaptations, derivative works, computers, hardware, networks, products, machines, compositions of matter and articles of manufacture, whether tangible or intangible, and whether stored, compiled, or memorialized (without limitation) physically, electronically, graphically, photographically, or in writing.
(14) Web Site: The term "Web Site" shall mean that certain multimedia interactive product that is a compilation of data, information, computer software, graphics, audio, audiovisuals, videos, components, and coding formatted for use on the Internet and commonly referred to as a web site.
(15) SYMPHONY Products: The term “SYMPHONY Products” shall mean all of that certain software, programs, up-dates of programs, models and formulas developed and maintained by SYMPHONY.
ARTICLE II
SCOPE OF USE AND COMPENSATION
Section 2.01 -- Access: SYMPHONY hereby grants User a non-exclusive and non-transferable license to access the VETSYMPHONY.COM Web Site solely for viewing and browsing the information on the Web page screens in the SYMPHONY Web Site, subject to the terms and provisions of this Agreement. Except as permitted under this Agreement, User shall not access the SYMPHONY System.
Section 2.02 -- Products: Neither The VETSYMPHONY.COM Web Site nor any other promotional material constitute an offer to sell any particular product or service. All products and services are subject to availability. All product descriptions and representations, including, without limitation, program capabilities, applicability for a particular use are subject to SYMPHONY’s final specifications for such products and all such specifications must be confirmed by User prior to any order, quote, or other reliance upon any representations on the SYMPHONY Web Site or other promotional material.
Section 2.03 -- Policy Statement: User shall comply with the Policy Statement. SYMPHONY may modify the Policy Statement from time to time at the exclusive discretion of SYMPHONY.
Section 2.04-- Compensation: User shall pay to SYMPHONY the sum indicated at time of sign up, on a per month basis commencing with the Effective Date for up to Three (3) Users and Five Dollars ($5.00) per month for each and every additional User of SYMPHONY Products and or person authorized to access to the SYMPHONY Web Site.
Section 2.05-- Minimum Subscription and Terms of Payment- All subscriptions for the use of SYMPHONY Products and or access to the SYMPHONY Website shall be for a minimum period of twelve (12) months. Payment shall be made monthly.
Section 2.06-- Termination and Renewal- User may not terminate this Agreement prior to the expiration of the Minimum Subscription Period as defined hereinabove. Failure to provide notice of termination to SYMPHONY not less than 30 days prior to shall cause this Agreement to automatically renew for an additional term equal to the Minimum Subscription Period as stating in Section 2.05 above upon the same terms and conditions as contained in this Agreement. SYMPHONY may terminate this Agreement at any time by giving written notice to User at the address provided by User to SYMPHONY at the time User original subscribed to this Agreement. If the termination date is prior to the expiration of the Minimum Subscription Period; then SYMPHONY shall issue a refund of fees to User prorated on a monthly basis as of the last month of the month in which SYMPHONY gave notice of termination to User; provided that said fees had been pre-payed by User and that User is not otherwise obligated to SYMPHONY.
ARTICLE III
INTELLECTUAL PROPERTY
Section 3.01 -- Ownership and Title: Title to the Materials (excluding Licensed Content), including ownership rights to patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of SYMPHONY.
Section 3.02 -- Unauthorized Use: User shall not copy or download the Materials without the prior written consent of SYMPHONY. User shall not modify, reverse engineer, reproduce, display, publicly perform, distribute, or create derivative works based on the Material, including (without limitation) by framing, mirroring, or similar means, or use the Materials for public or commercial purposes. User shall not use the Materials on any other Web Site.
Section 3.03 -- Trademarks: SYMPHONY shall retain all rights, title and ownership interests in the SYMPHONY Marks. Excepting the SYMPHONY Marks, all other product and company references are trademarks, trade names, service marks, or trade dresses of their respective owners (as applicable).
Section 3.04 -- No Contest: User acknowledges that the Materials are protected under laws, including (without limitation) United States of America and international copyright laws and treaties. User shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets (as applicable) of SYMPHONY in connection with the Materials.
Section 3.05 -- User Submissions: Any information posted or submitted by User on the SYMPHONY Web Site shall be deemed non-confidential unless otherwise deemed confidential by an agreement in writing and signed by authorized representatives of SYMPHONY and User. SYMPHONY may use any User materials, information, ideas, concepts, or techniques submitted by User on the VETSYMPHONY.COM Web Site or learned by SYMPHONY for any purpose (including, without limitation, the right to display, reproduce, modify, transmit, disclose, and distribute any such information).
ARTICLE IV
WARRANTY AND INDEMNIFICATION
Section 4.01 -- Express Warranties: User hereby acknowledges and agrees that SYMPHONY (including officers, employees, agents, directors and independent contractors of SYMPHONY) has not made or granted to User any express warranties concerning the SYMPHONY Web Site or SYMPHONY products. Use and performance of SYMPHONY products and services referenced in the VETSYMPHONY.COM Web Site (including, without limitation, SYMPHONY certifications) are subject to SYMPHONY terms and conditions concerning such products, services and certifications as made available by SYMPHONY. User hereby acknowledges that the VETSYMPHONY.COM Web Site does not constitute a grant of an express warranty concerning SYMPHONY products and services, and User waives any and all claims of warranty based on the SYMPHONY Web Site.
SECTION 4.02 -- WARRANTY LIMITATION: THE VETSYMPHONY.COM WEB SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND. SYMPHONY, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY DISCLAIMS AND USER HEREBY WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SYMPHONY DOES NOT WARRANT AND USER HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THE SYMPHONY WEB SITE AND OR PRODUCTS BY USER WILL BE UNINTERRUPTED OR ERROR FREE. SYMPHONY DOES NOT MAKE ANY WARRANTY AND USER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE SYMPHONY WEB SITE OR AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE SYMPHONY WEB SITE. USER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE INTERNET AND SYMPHONY WEB SITE AND PRODUCTS SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF USER AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF CONDUCT GOVERNING THE INTERNET AND THE SYMPHONY WEB SITE.
Section 4.03 -- Inaccuracies: User hereby acknowledges that the VETSYMPHONY.COM Web Site and or Products may contain errors, inaccuracies and omissions. User shall assume any and all risk of loss, harm or damage associated with User access to and use of the VETSYMPHONY.COM Web Site and or Products.
SECTION 4.04 -- LIMITATION OF LIABILITY: SYMPHONY SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH (I) USE, PERFORMANCE OR OPERATION OF THE VETSYMPHONY.COM WEB SITE; (II) USE, PERFORMANCE OR OPERATION OF THE INTERNET OR USE OF THE INTERNET BY USER; AND (III) LOSS OF DATA), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, REGARDLESS OF WHETHER SYMPHONY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE.
SECTION 4.05 -- REMEDIES: THE SOLE REMEDY OF USER FOR ANY REASON AND FOR ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT AND THE VETSYMPHONY.COM WEB SITE OR USE OF PRODUCTS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE MODIFICATION OF THE VETSYMPHONY.COM WEB SITE, OR PRODUCTS AS DETERMINED BY SYMPHONY.
Section 4.06 -- Indemnification: User shall release, defend, indemnify and hold harmless SYMPHONY (including its officers, directors, employees, affiliates, contractors and agents) against any expense, loss, cost, or liability (including, without limitation, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (i) use of the VETSYMPHONY.COM Web Site or the Internet by User (including, without limitation, any claims for breach of warranty, loss of data, libel, slander, invasion of privacy or false advertising); (ii) performance of the VETSYMPHONY.COM Web Site; (iii) User submissions to the VETSYMPHONY.COM Web Site; (iv) User's negligence or the acts (or any failure to act) of User; and (v) any breach by User of the obligations of User under this Agreement.
Section 4.07 -- Export Assurance: User shall not disclose, export, distribute or transfer the Materials (directly or indirectly) outside the United States of America. User shall not perform any act in conflict with or in violation of the export laws and regulations of the United States of America, including (without limitation) the Export Administration Act, 50 U.S.C. §2401, et seq., and the Export Administration Regulations, 15 C.F.R. Parts 730-774.
Section 4.08 -- Links: User hereby acknowledges that the VETSYMPHONY.COM Web Site contains Links to third party Web Sites which are provided solely as a convenience to User and do not constitute an endorsement by SYMPHONY of such Web Sites and the third party content therein.
ARTICLE V
MISCELLANEOUS
Section 5.01 -- Entire Agreement: This Agreement contains the entire understanding of the parties relating to the Materials and supersedes all previous verbal and written agreements between SYMPHONY and User relating to the Materials.
Section 5.02 -- Amendments and Modifications: Excepting modifications made to the Policy Statement by SYMPHONY and modifications made to this Agreement by SYMPHONY, any alteration, modification or amendment of this Agreement shall be void unless such alteration, modification or amendment is in writing and signed by an authorized representative of SYMPHONY.
Section 5.03 -- Severability: If a provision of this Agreement is rendered invalid the remaining provisions shall remain in full force and effect.
Section 5.04 -- Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
Section 5.05 -- Governing Law: This Agreement is governed by the laws of the State of Florida, without regard to any rules of conflict or choice of laws that require the application of laws of another jurisdiction, and venue shall be Los Angeles, California.
Section 5.06 -- User Notice: All notices shall be in writing. Notices to User shall be deemed delivered when delivered to User electronically, by commercial overnight delivery service, by Certified or Registered Mail - Return Receipt Requested, or by hand. Notices to User shall be deemed given on the date notice is delivered electronically or by hand to User or on the date of receipt by User (as evidenced in the case of Certified or Registered Mail by Return Receipt), whichever occurs first. Notices delivered to User electronically (including, without limitation, electronic mail) shall be deemed written notices.
Section 5.07 -- SYMPHONY Notice: All notices shall be in writing. Notices to SYMPHONY shall be deemed delivered when delivered to SYMPHONY electronically, by commercial overnight delivery service, Certified or Registered Mail - Return Receipt Requested, or by hand to the address set forth below for SYMPHONY. Notices to SYMPHONY shall be deemed given on the date notice is received by SYMPHONY (as evidenced in the case of Certified or Registered Mail by Return Receipt). Notices delivered to SYMPHONY electronically (including, without limitation, electronic mail) shall be deemed in compliance with this Section 5.07 only if promptly confirmed in writing by User.
SYMPHONY
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Section 5.08 -- Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, singular or plural as the context shall require.
Section 5.09 -- Equitable Remedies: The parties hereby acknowledge and agree that damages at law will be an inadequate remedy to SYMPHONY. In addition to other rights that may be available, SYMPHONY shall have the right of specific performance, injunction or other equitable remedy (including, without limitation, the right to such equitable remedies prior to or pending arbitration) in the event of a breach or threatened breach of this Agreement by User.
Section 5.10 -- Waiver: Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. All remedies under this Agreement are in addition to equitable remedies and remedies provided by law and are cumulative. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
Section 5.11 -- Public Announcements: All public announcements concerning the SYMPHONY Web Site or the relationship of User and SYMPHONY shall be subject to the prior written approval of SYMPHONY.
Section 5.12 -- Arbitration: 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 (excluding Expedited Procedures) of the American Arbitration Association in the city of Los Angeles, California. The American English language shall be the applicable and controlling language of the arbitration. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof, unless either Distributor or SYMPHONY under this Section 5.12 has filed a subsequent request for reconsideration. Three qualified arbitrators shall be appointed in accordance with the Commercial Arbitration Rules (excluding Expedited Procedures) of the American Arbitration Association and this Agreement. Such qualified arbitrators shall be members of the bar of any State in the United States of America and shall have at least five years of experience in computer law matters. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. A stenographer shall be present at the arbitration proceedings and the stenographic record shall be the official record of the proceeding. The arbitration award shall be in writing and shall include findings of fact and conclusions of law. Each party shall have the right to appeal any decision of the arbitrators by filing a request for reconsideration of such decision with the American Arbitration Association within ninety days of receiving such decision. Upon receiving such request for reconsideration, the American Arbitration Association shall reconsider the matter de novo using a different panel of three appellate arbitrators and the foregoing procedures. Such panel of appellate arbitrators shall be selected using the same procedures as used to select the original arbitrators. Each party shall pay an equal share of the fees and expenses of the arbitrators and administrative fees and expenses of the arbitration.
Section 5.13 -- 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 or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).
THIS WEB PAGE DOCUMENT ("AGREEMENT") IS A LEGAL DOCUMENT BETWEEN YOU ("USER") AND SYMPHONY VETERINARY SPECIALTY HOSPITALS, INC., DBA VETSYMPHONY.COM (HEREINAFTER “SYMPHONY"). THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH YOU MAY ACCESS THE SYMPHONY WEB SITE AND OR YOUR USE OF SYMPHONY PRODUCTS. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE SYMPHONY WEB SITE. BY ACCESSING THE SYMPHONY WEB SITE YOU INDICATE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT ACCESS THE SYMPHONY WEB SITE. SYMPHONY MAY REVISE THIS AGREEMENT AT ANY TIME WITHOUT NOTICE. YOU SHOULD VISIT THIS WEB PAGE PERIODICALLY TO REVIEW THE AGREEMENT.
Ordering, using, paying for Symphony Products and or accessing Symphony Web site shall constitute a promise by User to be bound to the terms of this Agreement.
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