This Agreement is entered into by and between EXPRESS PET CERTIFY (the "Company"), and User of the Company's website located at expresspetcertify.com (the "Site"). This Agreement governs the use of the services provided by the Company to User (collectively, the "Services").
1. Services. The Services include providing a medium where Users can be tested to determine User's qualifications for an emotional support animal (an "ESA") in order to obtain an authorization letter (an "ESA Letter") in compliance with the Fair Housing Act, the Air Carriers Access act, and any other federal or state law or regulation that may require exceptions for ownership or use of an ESA. The Company connects User with a third-party service provider (the "Third-Party Provider") to perform such qualification testing. User agrees that the testing services are performed through an application programming interface, or API, that allows User to review and submit to the website and database of the Third-Party Provider (the "Third-Party Application") answers to testing questions. User further agrees that the Company does not (i) provide the testing services, (ii) make a determination as to User's qualifications for an ESA, and (iii) directly provide any ESA Letter. Rather, the Company merely acts as a medium for the testing services and the delivery of ESA Letter by the Third-Party Provider. User hereby consents to (i) the qualification testing provided under the Services as described in this Section 1 and (ii) to comply with the terms set forth in this Agreement.
2. Eligibility. User agrees and acknowledges that the Site is operated for individual users who are at least thirteen (13) years old, and the Company never requests personally identifiable information from anyone under the age of thirteen (13). User represents and warrants that he or she is thirteen (13) years old or older and shall not provide any personal information in violation of the Children's Online Privacy Protection Act, 15 U.S.C. §§ 6501 through 6506. If a parent or legal guardian knows that its child has provided personally identifiable information and such child is under the age of thirteen (13), the parent or legal guardian should immediately contact the Company at email@example.com. By agreeing to these Terms, User represents and warrants (i) that User is at least thirteen (13) years of age; (ii) that if User is a minor, User has his/her parents' or legal guardians' express permission to use the Site and pay for any Services offered through the Site; and (iii) that User's use of the Services is in compliance with any and all applicable laws and regulations.
3. No Therapy or Medical Advice. USER HEREBY AGREES AND ACKNOWLEDGES THAT THE COMPANY DOES NOT PROVIDE IN ANY WAY THERAPY SERVICES, MEDICAL DIAGNOSES, OR TREATMENT. USER FURTHER AGREES THAT THE SERVICES ARE NOT, AND USER WILL NOT USE THE SERVICES AS, A SUBSTITUTE FOR THERAPY, MEDICAL, OR OTHER HEALTHCARE RELATED SERVICES. RATHER, USER ACKNOWLEDGES THAT THE SERVICES ARE MERELY EDUCATIONAL TOOLS THAT ARE MADE AVAILABLE TO ASSIST USER. BY USING THE SITE OR THE SERVICES, USER IS NOT ESTABLISHING A DOCTOR-PATIENT RELATIONSHIP OR PSYCHOTERAPIST-CLIENT RELATIONSHIP, AND COMMUNICATIONS BETWEEN USER AND THE COMPANY ARE NOT PROTECTED BY PHYSICIAN-PATIENT PRIVILEGE OR DOCTOR-PATIENT CONFIDENTIALITY. USE OF THE SITE AND ANY OF THE SERVICES PROVIDED ON THE SITE IS AT USER'S OWN RISK.
4. Authorization to Release Information. User agrees that the answers to testing questions provided through the Services will include personal information and User expressly consents to the submission of the information provided by User, including but not limited to, personal information (collectively, the "User Information"), to the Third-Party Application. User agrees that as a result of providing the Services, certain protectable health information ("PHI") may be uploaded to the Third-Party Application. In order to participate in the Services, User agrees that User must sign an authorization to release information form (the "Authorization") in compliance with the Health Insurance Portability & Accountability Act of 1996 so that PHI may be used and disclosed to the parties identified on the Authorization, including but not limited to, the Third-Party Provider.
5. Login to Third-Party Application; Restrictions; Account Information.
5.1 Login Credentials. User agrees that the Third-Party Provider will provide or allow User to create login credentials, including a user name and password. Each User agrees that the Third-Party Application may be used only by such User. Each User agrees to promptly notify the Company of any unauthorized access or use of which User becomes aware. User will be responsible for all use and misuse of the Services, including but not limited to, the Third-Party Application, that occurs under User's login credentials.
5.2 Prohibited Use. User will not do any of the following: (a) "frame," distribute, resell, or permit access to the Third-Party Application by any third party other than for its intended purposes; (b) use the Services other than in compliance with applicable laws; (c) interfere with the Third-Party Application, disrupt any other user's access to the Third-Party Application, or provide anyone access to the Third-Party Application that is not authorized by the Company; (d) reverse engineer, attempt to gain unauthorized access to the Third-Party Application, or attempt to discover the underlying source code or structure of the Third-Party Application; (e) submit to the Third-Party Application any malware or any unauthorized feature that is designed to alter any software, program, data, device, system or service, or provide unauthorized access to the Third-Party Application; (f) submit to the Third-Party Application any content that is harassing, threatening, infringing, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane, or is otherwise in violation of federal, state, or local laws and regulations; or (g) use any robot, spider, data scraping tool, extraction tool, or similar mechanism with respect to the Third-Party Application.
5.3 Account Information. As part of the User Information, Users will be required to provide other personal information to the Company in connection with paying for the Services, including but not limited to, names, credit card information, and other profile information ("Account Information"). For purposes of this Agreement, Account Information does not include aggregate or de-identified information compiled from Account Information that does not identify User.
6. License and Processing of Data.
6.1 License. User hereby grants to the Company a non-exclusive, perpetual, royalty-free, worldwide license to use the User Information for the limited purpose of granting to the Third-Party Provider a sublicense to access and use the User Information.
6.3 Treatment at Termination. Upon termination of this Agreement, the Company may continue to use Account Information and the Third-Party Provider may continue to use User Information, and neither party has the obligation to delete any such information.
6.4 Ownership. Subject to the license granted in Section 6.1, User retains all right, title, and interest in and to all Account Information and User Information. User represents and warrants that it has all rights, permissions, and consents necessary: (a) to submit all Account Information to the Company and all User Information to the Third-Party Application; and (b) to grant the Company the limited rights to process Account Information and to grant to the Third-Party Provider a sublicense to use the User Information as set forth in this Agreement.
7. Fees and Payment. In consideration of the Services, User will pay the fees specified at the time of purchase of the Services. The Company may amend the fees for the relevant Services from time to time by publishing the revised fees on the Site. All fees are nonrefundable once paid ; provided, however, that the Company will provide a refund of fees for any testing where the User does not qualify for an ESA Letter. If User receives an ESA Letter the first year but does not receive an ESA Letter the second year, the Company shall only refund the fees paid for the second year of Services. User authorizes the Company to charge User's credit card for all applicable fees and taxes.
8. Term and Termination.
8.1 Term. The term ("Term") for each User will commence on the date User submits a payment for the Services and, subject to the termination rights under Section 8.2, shall continue for so long as any ESA Letter provided in connection with the Services is still valid under federal or state law, as applicable.
8.2 Termination for Cause; Suspension. The Company may terminate this Agreement immediately if User breaches any material provision of this Agreement and fails to cure that breach within thirty (30) days of written notice from the Company. In addition, the Company may suspend User's access to the Services immediately if: (a) User has (or the Company reasonably suspects that User has) breached Sections 5.1 or 5.2 or misappropriated or infringed the Company's intellectual property or proprietary rights; or (b) User has made any false statements or misrepresentations to the Company.
8.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) all rights and obligations of the parties hereunder will cease (except as set forth in Section 8.4 below); (b) User's login credentials will be revoked; and (c) User will not have access to the Third-Party Platform.
8.4 Survival. Sections 6.2, 6.3, 6.4, 8.4, 9, 10, 12.1, 12.3, 13, 14, 15, 17, 18, 20, and any other provision of this Agreement that is intended, explicitly or otherwise, to survive termination of this Agreement shall survive any such termination.
9. Proprietary Rights. As between the parties, the Company retains all right, title, and interest in and to: (a) the Services and the technology and software related to the Third-Party Application, and all intellectual property and proprietary rights therein; and (b) all electronic and print documentation and other content and data (excluding User Information and Account Information) made available through the Services. Except for the licenses as set forth in this Agreement, this Agreement does not convey any of the Company's intellectual property or proprietary rights to anyone, including User.
10. Confidentiality of the Services.
10.1 Confidential Information. "Confidential Information" means all non-public, proprietary business, technical, legal, or financial information disclosed to or learned by User in connection with the business relationship between the parties regardless of whether the Company has identified such information as confidential at the time of disclosure, including but not limited to, the Third-Party Application and the questions provided through the Third-Party Application. Confidential Information does not include: (a) information that was generally known to the public at the time disclosed to User; (b) information that becomes generally known to the public (other than through a breach of this Section 10 by User) after disclosure to User; (c) information that was in User's possession free of any obligation of confidentiality prior to disclosure by the Company; (d) information that is rightfully received by User from a third party without any restriction on disclosure; or (e) information that was independently developed by User without reference to or use of the Confidential Information. All Confidential Information is provided "AS IS." THE COMPANY MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION.
10.2 Use and Disclosure of Confidential Information. User: (a) will not use Confidential Information for any purpose except in connection with this Agreement; (b) will not disclose, give access to, or distribute any of the Confidential Information to any third party; and (c) will take reasonable security precautions (which will be at least as protective as the precautions User takes to preserve its own confidential information of a similar nature) to keep the Confidential Information confidential. User will promptly notify the Company upon discovery of any unauthorized disclosure or use of the Confidential Information, or any other breach of this Section 10, by User.
10.3 Intellectual Property; No Obligation to Disclose. As between the parties, the Company retains all rights, title, and interest in and to the Confidential Information, including all intellectual property and proprietary rights therein. The disclosure of the Confidential Information to User does not grant or convey any right of ownership of such Confidential Information.
10.4 Required Disclosures. User may disclose the Confidential Information to the extent required by law or legal process. In such cases, however, User will (except to the extent prohibited by law or legal process from doing so): (a) give the Company prior notice of such disclosure so as to afford the Company a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with the Company, at the Company's expense, in the Company's efforts to ensure that the Confidential Information will be subject to a protective order or other legally available means of protection.
10.5 Injunctive Relief. User acknowledges that any actual or threatened breach of this Section 10 may cause irreparable, non-monetary injury to the Company, the extent of which may be difficult to ascertain. Accordingly, the Company is entitled to seek injunctive relief in addition to all remedies available to the Company at law and/or in equity.
12. Representations and Warranties; Disclaimer.
12.1 Mental Health Diagnosis. User hereby represents and warrants that User has been formally diagnosed with a mental health disorder by a qualified and licensed mental health professional, and User acknowledges that User may be precluded from using the Services without such mental health diagnosis.
12.2 Authority Warranty. User represents and warrants that User has the necessary authority to enter into this Agreement.
12.3 Personal Use. User represents and warrants that User's use of the Services are limited to personal purposes and that User shall not use the Services for any commercial purpose.
12.4 Disclaimer. User acknowledges that the Third-Party Application may experience periods of downtime, including but not limited to scheduled maintenance. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE IN THIS SECTION 12, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, AND ANY INFORMATION OR MATERIALS RELATED THERETO OR MADE AVAILABLE THEREFROM, WHETHER EXPRESS OR IMPLIED. THE COMPANY DOES NOT GUARANTY AND SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE USER WILL QUALIFY OR OTHERWISE OBTAIN AN ESA LETTER. THE COMPANY FURTHER DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
12.5 Binding Agreement. By clicking on the "I Accept" button, this Agreement will be valid, binding, and enforceable with respect to User in accordance with these terms. The performance of User's obligations under this Agreement will not constitute a default, or an event which with the passage of time, the giving of notice, or both, would constitute a default, under any other agreement by which User is bound. User is not and shall not be under any disability, restriction or prohibition related to use of the Website and the performance of its obligations under this Agreement.
13. Limitation of Liability.
13.1 Exclusion of Consequential and Related Damages; Cap on Damages. THE COMPANY WILL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE, WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY, ARISING UNDER THIS AGREEMENT, EVEN IF THE COMPANY HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES. THE COMPANY'S ENTIRE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY USER TO THE COMPANY FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE.
13.2 General. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the parties. The fees for the Services reflect this allocation of risk and limitation of liability. User agrees that these provisions apply even if the remedies are insufficient to cover all of the losses or damages of User or fails of its essential purpose.
14. Indemnification. User will defend the Company, and its respective directors, employees, and agents (the "Indemnified Parties") from and against any claims, demands, proceedings, investigations, or suits brought by a third party arising out of User's use of the Services in violation of this Agreement or applicable law. User will indemnify the Indemnified Parties for any damages, reasonable attorney's fees, and costs resulting from a claim that User is obligated to defend and finally awarded against the Company or agreed to be paid by the Company in a written settlement approved by User in writing. The User's obligations under this Section 14 are contingent on the Indemnified Party: (a) promptly providing written notice of the claim to the User; (b) giving the User sole control of the defense and settlement of the claim (provided that any settlement unconditionally releases the Indemnified Party of all liability and does not make any admissions on behalf of the Indemnified Party or include payment of any amounts by the Indemnified Party); and (c) providing the User, at the User's expense, all reasonable assistance in connection with such claim. The Indemnified Party may participate in the defense of the claim at its sole cost and expense.
15. Notices. User agrees to receive all communications, agreements, and notices from the Company electronically, including by e-mail or by posting them on the Site. User further agrees such communications provided electronically will satisfy any legal requirement that such communications be in writing. Notices sent via email will be deemed given one (1) business day after being sent. To contact the Company, notices shall be sent via email to firstname.lastname@example.org.
16. Assignment. The Company may assign this Agreement in connection with a merger or similar transaction, or to a company acquiring substantially all of its assets, equity, or business, without any requirement to obtain permission for such assignment; otherwise, neither party may assign this Agreement to a third party without the advance written consent of the other party. This Agreement will bind and benefit the parties, their successors, and their permitted assigns.
17. Entire Agreement. This Agreement represents the entire agreement between the Company and User with respect to the use of the Services. This Agreement expressly supersedes any other contemporaneous or prior agreements or commitments regarding the Services or the other subject matter of this Agreement.
18. Electronic Transaction. The parties expressly agree to conduct this transaction electronically pursuant to the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 and any similar state laws.
19. Effective Date. This Agreement shall be dated effective as of the date User clicks on the "I Accept" button.
20. General. Neither party is liable for delay or default under this Agreement if caused by conditions beyond its reasonable control. This Agreement is governed by the laws of the State of Florida, without regard to its conflicts of law rules, and each party hereby consents to exclusive jurisdiction and venue in the state and federal courts located in Florida for any dispute arising out of this Agreement. If either party brings an action against the other party to enforce any provision of this Agreement, the prevailing party shall be entitled to an award of reasonable attorney's fees and costs. Except pursuant to Section 7, the waiver of any breach of any provision of this Agreement will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this Agreement is to remain in effect as written. Notwithstanding the foregoing, if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this Agreement, the entire Agreement will be deemed null and void.
21. Modifications. The Company reserves the right to modify this Agreement by posting a revised version on the Site. Except in the event of extenuating circumstances, revisions will be effective fifteen (15) days after posting. Continued use of the Services after the effective date of a revision will constitute User's agreement to the modified Agreement. If User does not agree to a revision, User may terminate this Agreement by providing written notice to the Company. User's termination will be effective upon the Company's acknowledgement of such termination, and in no event later than thirty (30) days from the Company's receipt of User's termination notice.