MaxCare Pets, INC. Last Updated: September 1, 2020
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 18, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND MaxCare Pets ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 18.)
1. Use of The Site.
MaxCare Pets and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Site. You may opt out of receiving operational text messages at any time by sending an email to firstname.lastname@example.org indicating that you no longer wish to receive such texts along with the phone number of the mobile device receiving the texts. You may continue to receive text messages for a short period while MaxCare Pets processes your request, and you may also receive text messages confirming the receipt of your opt-out request. Opting out of receiving operational text messages may impact the functionality that the Site provides to you. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive text messages is not a condition of any purchase or use of the Site. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.
We may send you emails concerning out products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
2. Veterinary Medicine Services.
All of the Providers who deliver Services through MaxCare Pets are independent professionals solely responsible for the services each provides to you and your pets. MaxCare Pets does not practice veterinary medicine or any other licensed profession, and does not interfere with the practice of veterinary medicine or any other licensed profession by Providers, each of whom is responsible for his or her services and compliance with the requirements applicable to his or her profession and license. Neither MaxCare Pets nor any third parties who promote the Services or provide you with a link to the Site shall be liable for any damages allegedly caused by the professional advice you or your pet obtains from a Provider via the Services.
In order for a Provider to diagnose, treat, or prescribe medication to you or your pet (the “VCPR Services”), you must have established a valid Veterinarian-Client-Patient Relationship (“VCPR”) with that Provider under applicable law for the specific pet that is the subject of the Services. A valid VCPR cannot be established online, by email or over the telephone. The requirements of a valid VCPR may vary state to state. The VCPR for the specific pet that is the subject of the VCPR Services must have been established within a reasonable time considering the specific condition of the pet but in no case more than a year prior to your provision of services to the User on the Site. If you intend to use VCPR Services, you represent that a VCPR exists with the Provider and pet you have connected or, in the absence of a VCPR, you are only seeking veterinary advice and not a diagnosis, treatment, or prescription medication.
Electronic (including audio and video) or phone communications via the Site are not confidential or privileged and will not be the subject of any associated confidences or privileges. You understand and agree that all such communications may be recorded for training and quality control purposes and for review and assessment by your Provider and/or your regular veterinarian.
YOU CONSENT TO THE EXCHANGE AND RELEASE OF INFORMATION AND RECORDS (INCLUDING COMMUNICATIONS RECORDED IN CONNECTION WITH THE SERVICES) RELATED TO YOUR PET BETWEEN AND FROM YOUR REGULAR VETERINARIAN (OR OTHER VETERINARY FACILITY THAT HOLDS SUCH RECORDS), MaxCare Pets, AND YOUR PROVIDER. MaxCare Pets MAY STORE YOUR PET’S MEDICAL RECORDS IN MaxCare Pets’S SYSTEM SO THAT PROPER CARE MAY BE GIVEN.
3. Site Content.
None of the Site content (other than information you receive from a Provider) should be considered medical advice or an endorsement, representation or warranty that any particular medication or treatment is safe, appropriate, or effective for your pet.
4. Informed Consent.
(a) Our telehealth services involve the delivery of veterinary medical services using interactive audio and video technology, where the pet owner and the pet and the veterinary professional are not in the same physical location. During your telehealth consultation with a Provider, details of your pet’s health history and health status information may be discussed with you through the use of interactive video, audio and other telecommunications technology, and your Provider may ask for your assistance to conduct an assessment of your pet through these technologies.
(b) The telehealth services you receive from Providers are not intended to replace a primary care veterinary relationship or be your permanent veterinary medical service but rather augment these services. You should seek emergency help or follow-up care: when recommended by a Provider; if the pet appears in pain; if there appears to be a risk of injury to human or animal; or when otherwise needed; and continue to consult with your primary veterinarian and other veterinary professionals as recommended. You may make arrangements for follow-up care either through MaxCare Pets or other veterinary providers. Among the benefits of our Services are improved access to veterinary medicine professionals and convenience. However, as with any veterinary medicine service, there are potential risks associated with the use of telehealth services. These risks include, without limitation, the possibility that information transmitted may not be sufficient (e.g., poor resolution of images) to allow for appropriate care decision-making by the Provider. In addition, delays in evaluation or treatment could occur due to failures of the electronic equipment. If this happens, you may be contacted by phone or other means of communication. It is possible that a lack of access to all of your pet’s health records or other relevant information (including without limitation historical, medical, and behavioral information) may result in adverse drug interactions or allergic reactions or other judgment errors.
(d) IF YOUR PET IS EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD GO TO YOUR NEAREST VETERINARY TREATMENT FACILITY.
5. USER ACCOUNTS.
When you register on the Site, you are required to create an account (“Account”) by entering your name, email address, password and certain other information collected by MaxCare Pets (collectively “Account Information”). To create an Account, you must be at least 18 years old and of legal age to form a binding contract. If you are not of legal age to form a binding contract, you may not register to use our Services. You agree that the Account Information that you provide to us at all times, including during registration and in any information you upload to the Site will be true, accurate, current, and complete. You may not transfer or share your Account password with anyone, or create more than one Account. You are responsible for maintaining the confidentiality of your Account password and for all activities that occur under your Account. MaxCare Pets reserves the right to take any and all action, as it deems necessary or reasonable, regarding the security of the Site and your Account Information. In no event and under no circumstances shall MaxCare Pets be held liable to you for any liabilities or damages resulting from or arising out of your use of the Site, your use of the Account Information or your release of the Account Information to a third party. You may not use anyone else’s account at any time.
The Site is not directed to children and children are not eligible to use our Service. If we later obtain actual knowledge that a user is under 18 years old, we will take steps to remove that user’s personal information from our databases. By using our Site, you represent that you are at least 18 years old.
Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service. By providing User Content to or via the Service, you grant MaxCare Pets a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. If a Provider or another User requires access to your User Content, you grant those Providers or Users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
7. FEES AND PURCHASE TERMS.
You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. By providing MaxCare Pets with your credit card number or PayPal account and associated payment information, you agree that MaxCare Pets is authorized to immediately invoice your account for all fees and charges due and payable to MaxCare Pets hereunder and that no additional notice or consent is required.
You are entitled to a refund of your payment to MaxCare Pets if(i) MaxCare Pets encounters a technical issue which results in the inability of your Provider to complete a video consultation (this excludes device or internet connection issues on your end to access the video consultation or Service); or (ii) your Provider is unable to provide you with any information, guidance, or advice regarding your pet, as determined by MaxCare Pets in its reasonable discretion.
If you believe you are entitled to a refund, please contact the MaxCare Pets team as soon as possible by email to: email@example.com. We will then verify whether you are entitled to a refund and, if appropriate, complete the refund as soon as possible.
8. WEBSITE LINKS.
WE WILL NOT BE LIABLE FOR ANY INFORMATION, SOFTWARE, OR LINKS FOUND AT ANY OTHER WEBSITE, INTERNET LOCATION, OR SOURCE OF INFORMATION, NOR FOR YOUR USE OF SUCH INFORMATION, SOFTWARE OR LINKS, NOR FOR THE ACTS OR OMISSIONS OF ANY SUCH WEBSITES OR THEIR RESPECTIVE OPERATORS.
MaxCare Pets may provide tools through the Site that enable you to export information to third party services, including through features that allow you to link your account on MaxCare Pets with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that MaxCare Pets may transfer that information to the applicable third party service. Third party services are not under MaxCare Pets’s control, and, to the fullest extent permitted by law, MaxCare Pets is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under MaxCare Pets’s control, and MaxCare Pets is not responsible for their content.
Certain of the names, logos, and other materials displayed on the Site or in the Services may constitute trademarks, trade names, service marks or logos (“Marks”) of MaxCare Pets or third parties. You are not authorized to use any such Marks without the express written permission of MaxCare Pets. Ownership of all such Marks and the goodwill associated therewith remains with us or such third parties.
You may deactivate your Account and end your registration at any time, for any reason by sending an email to firstname.lastname@example.org. MaxCare Pets may suspend or terminate your use of the Site, your Account and/or registration for any reason at any time. Subject to applicable law, MaxCare Pets reserves the right to maintain, delete or destroy all communications and materials posted or uploaded to the Site pursuant to its internal record retention and/or content destruction policies. After such termination, MaxCare Pets will have no further obligation to provide the Services.
12. RIGHT TO MODIFY.
13. DISCLAIMER OF WARRANTIES; RELEASE.
YOU EXPRESSLY AGREE THAT USE OF THE SITE OR SERVICES IS AT YOUR SOLE RISK. BOTH THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MaxCare Pets EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, VALUE, ACCURACY OF DATA, SYSTEM INTEGRATION, RELIABILITY OF PERFORMANCE AND FREEDOM FROM ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE AND SITE-RELATED SERVICES.
You acknowledge and agree that MaxCare Pets does not provide veterinary medicine advice, diagnosis, or treatment, and is strictly a technology platform and infrastructure for connecting pet owners with independent third-party Providers, including veterinarians and other veterinary professionals in the MaxCare Pets network. You acknowledge and agree that the Providers using the Site are solely responsible for and will have complete authority, responsibility, supervision, and control over the provision of all veterinary medicine services, advice, instructions, treatment decisions, and other veterinary health care services performed, and that all diagnoses, treatments, procedures, and other veterinary health care services will be provided and performed exclusively by or under the supervision of the Providers, in their sole discretion, as they deem appropriate.
14. LIMITATION OF LIABILITY.
YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL MaxCare Pets OR ITS SHAREHOLDERS, OFFICERS, EMPLOYEES, MANAGERS, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO YOUR USE OF THE SITE OR THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
You agree to indemnify, defend and hold harmless MaxCare Pets, its shareholders, officers, directors, managers, employees, agents, subsidiaries, affiliates, licensors, suppliers, successors and assigns from and against any claim, actions, demands, liabilities and settlements, including without limitation reasonable legal and accounting fees (“Claims”), resulting from, or alleged to result from, your violation of these terms and conditions. In addition, you agree to indemnify, defend and hold harmless your Provider(s) from and against any third-party Claims resulting from your lack of adherence with the advice or recommendation(s) of such Provider.
MaxCare Pets reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of MaxCare Pets. MaxCare Pets will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
16. GEOGRAPHICAL RESTRICTIONS.
MaxCare Pets makes no representation that all products, services and/or material described on the Site, or the Services available through the Site, are appropriate or available for use in locations outside the United States or all territories within the United States. All financial transactions will be processed in U.S. dollars. The Service is not intended for distribution or use in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject MaxCare Pets to any registration requirement within such jurisdiction or country.
All veterinarians on the Site present evidence of a professional license upon initially being permitted to use the Site. However, the Site does not monitor the compliance by Providers with licensing requirements. Professional licenses are issued by the professional veterinary licensing boards in the states where the Providers practice. You may report a complaint relating to services provided by a Provider by contacting the professional veterinary licensing board in the state where the services were received.
18. DISPUTE RESOLUTION AND ARBITRATION
18.1 Generally. In the interest of resolving disputes between you and MaxCare Pets in the most expedient and cost effective manner, and except as described in Section 18.2 and 18.3, you and MaxCare Pets agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MaxCare Pets ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
18.2 Exceptions. Despite the provisions of Section 18.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
18.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to these Terms by sending a letter to MaxCare Pets, INC., Attention: Legal Department – Arbitration Opt-Out, 5792 W Jefferson Blvd, Los Angeles, CA 90016 that specifies: your full legal name, the email address associated with your account on the Site, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once MaxCare Pets receives your Opt-Out Notice, this Section 18 will be void and any action arising out of these Terms will be resolved as set forth in Section 19. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
18.4 Arbitrator. Any arbitration between you and MaxCare Pets will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting MaxCare Pets. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
18.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). MaxCare Pets’s address for Notice is: MaxCare Pets, INC., 5792 W Jefferson Blvd, Los Angeles, CA 90016. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or MaxCare Pets may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or MaxCare Pets must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by MaxCare Pets in settlement of the dispute prior to the award, MaxCare Pets will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
18.6 Fees. If you commence arbitration in accordance with these Terms, MaxCare Pets will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse MaxCare Pets for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
18.7 No Class Actions. YOU AND MaxCare Pets AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and MaxCare Pets agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
18.8 Modifications to this Arbitration Provision. If MaxCare Pets makes any future change to this arbitration provision, other than a change to MaxCare Pets’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to MaxCare Pets’s address for Notice of Arbitration, in which case your account with MaxCare Pets will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
18.9 Enforceability. If Section 18.7 or the entirety of this Section 18 is found to be unenforceable, or if MaxCare Pets receives an Opt-Out Notice from you, then the entirety of this Section 18 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 19 will govern any action arising out of or related to these Terms.
MaxCare Pets devotes considerable effort to optimizing signal strength and diagnosis deficiencies but is not responsible for the internet or data bandwidth and signal of your mobile device.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials appearing on this Web site infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. In addition, if you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet statutory requirements imposed by the DMCA. One place to find more information is the U.S. Copyright Office Web site, currently located at https://www.copyright.gov/. In accordance with the DMCA, MaxCare Pets has designated an agent to receive notification of alleged copyright infringement in accordance with the DMCA. Any written Notification of Claimed infringement should comply with Title 17, United States Code, Section 512(c)(3)(A) and should be provided in writing to MaxCare Pets, INC., 5792 W Jefferson Blvd, Los Angeles, CA 90016. MaxCare Pets will promptly terminate the accounts of users that are determined by MaxCare Pets to be repeat infringers.
20. Notice Regarding Apple.
This Section 20 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and MaxCare Pets only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.