Terms & Conditions
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING ANY SCOUT PLATFORM.
Welcome to Scout!
DVM Solutions, Inc. (“Scout”, “we” “us” or “our”) makes our website and the Scout application, and any and all related platforms, hosted services, solutions, and proprietary software, services, extensions, and application programming interfaces (collectively, the “Service”) available for your use subject to the terms and conditions herein and any additional terms contained in any attachment or incorporated hyperlink hereto (collectively, these “Terms of Service”). These Terms of Service condition your use of the Service as an end user (“you”) and are effective as of the date electronically executed by you (such date, the “Effective Date”). The disclaimers, terms, and conditions in these Terms of Service are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that Scout discloses.
If you are accessing the Service in connection with your employment or other clinical or professional relationship to a veterinary practice, company or other entity for which Scout provides enterprise rights to the Service (each, a “Practice”), you agree to use the Service in accordance with this Agreement and the policies and procedures established by the Practice to which you are affiliated with. You may also access and receive additional features and functionality within the Service based on your user role relative to the Practice to which you are affiliated with, in each case, as authorized by such entity.
BY USING THE SERVICE, YOU AGREE TO RESOLVE ANY DISPUTE WITH US THROUGH BINDING ARBITRATION OR SMALL CLAIMS DISPUTE PROCEDURES AND YOU WAIVE YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION SUIT. THESE TERMS OF SERVICE CONTAIN A MANDATORY ARBITRATION PROVISION BELOW.
Scout may update these Terms of Service at any time without notice to you. Any changes to these Terms of Service will be posted on or within the Service. You can determine when these Terms of Service were last revised by referring to the “Last Updated” legend at the top. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THESE TERMS OF SERVICE, ANY CHANGES TO THESE TERMS OF SERVICE ARE EFFECTIVE IMMEDIATELY UPON POSTING.
1. DEFINITIONS
The terms in this Article 1 shall have the meanings described below, and other terms may be defined within the context of these Terms of Service.
“Documentation” means any documentation distributed by Scout from time-to-time pertaining to the Service, including without limitation any accompanying or online user guides or technical information relating to the Service, in each case, as may be updated or amended by or on behalf of Scout from time to time.
“Personal Information” means any data that identifies, relates to, describes, or could reasonably be linked, directly or indirectly, to a particular individual.
“Third Party Materials” means software, services, interfaces, and firmware, provided by third parties which may be available or incorporated into the Service.
“User” means an individual who is authorized to use the Service who has a user identification and password. Unless the context clearly indicates otherwise, references to “you” herein shall mean you as a User and, as applicable, you on behalf of a Practice.
“User Data” means any data, information, content, or materials which is uploaded, entered, collected, or otherwise processed by or through the Service by or on behalf of you through or in connection with the Service.
2. OUR SERVICE
2.1 Right to Access. On the condition you comply with your obligations under these Terms of Service, and subject to additional terms of any licenses applicable to Third Party Materials or obligations established by a Practice to which you are affiliated with, Scout hereby grants to you a limited, revocable, non-exclusive, non-transferable, right to access and use the Service solely in connection with your Practice’s business purposes. Other than as expressly granted in these Terms of Service, no other rights are granted, including without limitation, any right to use or transfer ownership to any and all Scout patents, copyrights, moral rights, trade secrets, trademarks, service marks, publicity rights, and other proprietary rights (whether or not perfected or perfectible) (collectively, “Intellectual Property Rights”). All ownership rights, title, interest, and Intellectual Property Rights in and to the Service and Documentation shall remain with Scout and/or its licensors. If you do not comply with these Terms of Service, Scout reserves the right to revoke any rights granted hereunder and limit your access to the Service or any portion thereof. Any use of the Service or any portion thereof that exceeds the rights expressly granted in these Terms of Service is strictly prohibited and constitutes a violation of these Terms of Service, which may result in the suspension or termination of your right to access and use the Service and Documentation.
2.2 Modification. You agree that Scout has the right to modify any aspect or feature of the Service or any component thereof at any time with or without notice. From time to time and without notice to you, Scout may, but is under no obligation to, release upgrades, fixes or new versions of the Service.
2.3 Removal of Access. Scout reserves the right to refuse access to the Service to you or any User. Your access to the Service is provided subject to the terms and conditions of these Terms of Service and all restrictions set forth herein. You agree that Scout may immediately suspend or terminate your access to the Service or any part thereof in the event that: (1) you breach or violate these Terms of Service or other incorporated agreements or guidelines; (2) there is an unexpected technical or security issue or problem; or (3) you engage in fraudulent or illegal activities or a material breach of your obligations under these Terms of Service. You further agree that such measures may be taken in Scout’s sole discretion and without any liability to you or any third party.
2.4 Defects and Availability. Scout uses commercially reasonable efforts to maintain the Service, however, Scout is not responsible for any defects or failures associated with the Service, any part thereof, or any damages (either direct or indirect) that may result from any defects or failures. Scout provides standard support for the Service. However, Scout is not obligated to provide you support for, and shall not be responsible or liable for, any errors of the Service, or any damages resulting from your failure to use the Service in accordance with the Documentation. The Service and any component thereof may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which may be undertaken from time-to-time; or (3) causes beyond Scout’s reasonable control or which could not reasonably foreseen. You understand that the Service is provided over the Internet and so the quality and availability of the Service may be affected by factors outside of Scout’s control. Scout does not make any guarantees regarding the reliability or availability of the Service and will not be liable to you or any third party for damages or losses related to the Service being unavailable.
2.5 Third Party Materials. In the course of providing the Service, Scout may provide or make available connections to certain Third Party Materials that are implemented or embedded within the Service. Such Third Party Materials may include animal health electronic medical record systems. Upon requesting to connect with Third Party Materials through the Service, the Service may transmit your information and request to applicable third party providers via an application programming interface or similar technical integration (“API”) to facilitate the connection with Third Party Materials. You acknowledge and agree that Scout is not responsible for the availability of such Third Party Materials, and Scout does not endorse and is not responsible or liable for any content, advertising, products, services, or other materials on or available in connection with Third Party Materials or for any privacy or other practices of such third parties operating those websites or providing such Third Party Materials. Scout strongly encourages you to review any separate terms of use and privacy policies governing the use of such third-party websites and Third Party Materials. You acknowledge and agree that Third Party Materials are provided by independent entities that are not owned, controlled, or operated by Scout, and Scout disclaims all liability arising from your use of or reliance on such Third Party Materials. Your use of the Service to connect to Third Party Materials constitutes your consent for Scout to transmit your data and service requests through the relevant API as necessary to facilitate your request.
2.6 Ownership of Intellectual Property. All images, trademarks, service marks, logos and icons displayed on the Service are the property of Scout and/or its licensors and may not be used without Scout’s prior authorization. The Service, including all systems, databases, information, data, documents, materials, works, images, trademarks, service marks, logos, and all Intellectual Property Rights in and to the foregoing (collectively, the “Scout Materials”) shall at all times remain the exclusive intellectual property of Scout and its third-party licensors. You are not acquiring any Intellectual Property Rights in or to the Scout Materials other than the non-exclusive rights set forth in these Terms of Service. The Scout Materials may not be reproduced, recreated, sublicensed, modified, accessed, or used in any manner or disseminated or distributed to any other party without Scout’s prior written consent. Any unauthorized use of any Scout Materials, whether owned by Scout or any other parties, may violate copyright laws, trademark laws, intellectual property, privacy and publicity laws and communications, regulations and statutes.
2.7 Charting Features Disclaimer. The Service may include features designed to assist Users in streamlining veterinary record-keeping, including but not limited to charting, vital system and drug monitoring, dose calculations, or other similar features (“Charting Features”). These Charting Features are provided on an “As Is” and “As Available” basis without warranty of any kind solely for informational, organizational, and convenience purposes and are not a substitute for professional veterinary medical advice, diagnoses, treatment, or other veterinary medical services. We are not engaged in providing professional veterinary medical advice via the Service or otherwise, and any outputs produced by the Service that relate to the records or treatment of an animal should always be verified by a licensed veterinary professional. If you have questions regarding a veterinary medical condition, treatment, medication, or other similar health-related topics, you should seek the advice of a qualified veterinary professional and should not disregard such advice based on the information or features made available through the Service. You acknowledge and agree that (1) the Service, its content, and any communications from Scout or its affiliates do not constitute veterinary medical advice or clinical guidance; and (2) the Service is not intended to be a substitute for contacting emergency veterinary medical services, and you should immediately contact an applicable emergency response line or seek care from the nearest veterinary facility in event of an emergency involving an animal. Scout makes no representations, warranties, or guarantees regarding the accuracy, reliability, completeness, or usefulness of any Charting Features. The Service may rely on third-party systems, APIs, or networks that are beyond Scout’s control, and Scout expressly disclaims any responsibility for delays, failures, or errors in the operation of such features. Scout does not warrant the accuracy, completeness, or currency of the information provided on or made available through the Service. TO THE FULLEST EXTENT PERMITTED BY LAW, SCOUT EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY PERSONAL INJURY, ANIMAL INJURY, HEALTH OUTCOME, OTHER DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR RELIANCE ON, ANY CHARTING FEATURES OR RELATED INFORMATION PROVIDED THROUGH THE SERVICE. You assume full responsibility for your use of the Service and any decisions made based on its features or outputs.
2.8 AI Technology. In the course of providing the Service, Scout may utilize or make available to you for your use within the Service deep learning, machine learning, large language models, generative, and other proprietary embodied artificial intelligence made available by third parties (collectively, “AI Technology”). In your use of the Service, you may provide certain information to the Service in the form of an “Input”. As a result of your Input, the Service may suggest, provide or make available a response (an “Output”). AI Technology is an evolving technology, and accordingly, use of the Service may result in Outputs that are not accurate. WHEN USING THE SERVICE, YOU UNDERSTAND AND AGREE: (1) Outputs may not always be accurate, and you should not rely on any Output from the Service as a sole source of truth or factual information, or as a substitute for professional advice; (2) You must evaluate Outputs for accuracy and appropriateness for your own use case, including using human review as appropriate, before using or sharing Outputs from the Service; (3) The Service may provide incomplete, incorrect, or offensive Outputs that do not represent Scout or its affiliates’ views, and any Output that references any third-party products or services does not mean the third party endorses or is affiliated with Scout; and (4) Scout does not make (and expressly disclaims) any and all warranties and/or representations regarding the use of the Outputs, including but not limited to their accuracy, quality, reliability, correctness, or completeness.
3. YOUR RESPONSIBILITIES, REPRESENTATIONS, AND RESTRICTIONS
3.1 Account Registration. Access to the Service will be managed by you through an individual account (an “Account”). You may receive access as part of a paid service through a third party application store (e.g. pursuant to Section 3.6), or you may receive access as part of a passkey or other credential provided to you outside of the Service. In registering an Account for access to the Service, you or your Users may be asked to provide certain information, including but not limited to name, email address, telephone number and/or zip code. We will ask you or your Users to create a password. You may also have the ability to provide optional information, which is not required to register for the Account, but may be helpful to Scout in providing a customized experience for your Service use. Once Account registration information is submitted, Scout will have the right to approve or reject the requested registration in Scout’s sole discretion. You are responsible for providing and maintaining truthful, accurate, complete and current information in connection with your or your Users’ Account(s).
3.2 Unauthorized Use and Information Changes. You must immediately notify Scout if you learn of or have reason to suspect any unauthorized use of your Account or any other breach of security. You are responsible for maintaining the confidentiality of your access credentials and are fully responsible for all activities that occur under your Account, including any damages to Scout, the Service, or any component thereof resulting from unauthorized access to your Account or any of your Users’ Accounts. Scout will have no liability to you, to any User, or any third party for damages or loss related to such unauthorized use or access.
3.3 Representations. You hereby represent and warrant that: (1) you have the legal capacity and authority to enter into and perform your obligations under these Terms of Service; (2) you will comply with these Terms of Service and any other agreement to which you are subject that is related to your use of the Service or any part thereof; (3) you have provided and will maintain accurate and complete information, and will provide any additional information Scout may reasonably require; (4) your access to and use of the Service or any part thereof will not constitute a breach or violation of any other agreement, contract, terms of use or any law or regulation to which you are subject; (5) you will immediately notify Scout in the event you learn or suspect that any Personal Information which you are a controller of has been disclosed or otherwise made known to any other person without authorization; (6) you will not use the Service in order to gain competitive intelligence about Scout, the Service, or any product or service offered via the Service or to otherwise compete with Scout; and (7) User Data does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and you have acquired all appropriate consents and authorizations of all third parties as required under applicable law to provide the User Data through our Service.
3.4 Restrictions. You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of our Service in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, communications protocol, structure, or ideas upon which the Service is based; (3) use the Service or any data, content, or information accessed through the Service to develop a competing service or product or advertise other products or services to other Users; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of the Service, servers, data centers, or networks connected to the Service or take any other action that interferes with any other person’s use of the Service; (5) decrypt, transfer, create Internet links to the Service, or “frame” or “mirror” the Service on any other server or wireless or Internet-based device; (6) use or merge the Service or any component thereof with other software, databases, or services not provided or approved by Scout; (7) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to the Service, or remove, obscure, or alter any notices or indications of any Intellectual Property Rights, any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs, or designations, or any electronic notices; (8) use the Service for any fraudulent or otherwise unlawful purposes or in violation of these Terms of Service or for any manner outside of your authorized use of the Service; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with the Service or any component thereof; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Service for any reason; (11) access or attempt to access any other User’s account or use the Service in a way that prevents or inhibits another User from enjoying the Service; (12) use any data, content, or information made available through the Service in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into the Service any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm the Service, or perform any such actions; (14) introduce into the Service any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (15) delete, modify, hack, or attempt to change or alter the Service, any data, content, or information made available through the Service, or any notices on the Service; (16) connect to or access any Scout computer system or network other than the Service; (17) impersonate any other person or entity to use or gain access to the Service; and (18) conduct or otherwise participate in any distributed denial-of-service attack or similar malicious attack intended or designed to artificially delay, disrupt or otherwise adversely affect the Service or any other User’s access to or use of the Service. Scout reserves the right to fully investigate and prosecute violations of any of the above of the law. Scout may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms of Service. Scout may remove any data or content posted by you within the Service for any reason in its sole and absolute discretion.
3.5 Application Limited Right to Access. Access to the Service will be managed by you through your Account. Access to the Service may be available through the Android and iOS app stores (individually and collectively, the “App Store”). Scout hereby grants you a limited, non-exclusive, revocable, non-transferable, non-sublicensable right to install and use the Service as provided through the App Store on a mobile device that you own or control. By accessing the Service through the App Store, you agree to comply with any additional third-party provider hosting and mobile application agreements, including, but not limited to, those agreements described below in Section 3.6.
3.6 Supplemental Third-Party Terms
1. Apple Specific Terms. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the Service compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to these Terms of Service and does not own and is not responsible for the Service. Apple is not providing any warranty for the Service except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the Service and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the Service, including any third-party product liability claims, claims that the Service fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the Service, including those pertaining to Intellectual Property Rights, must be directed to Scout in accordance with these Terms of Service. The right you have been granted herein is limited to a non-transferable right to use the Service on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the usage rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the Service, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms of Service and, upon your acceptance of the terms and conditions of these Terms of Service, will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third-party beneficiary thereof; notwithstanding the foregoing, Scout’s right to enter into, rescind or terminate any variation, waiver or settlement under these Terms of Service is not subject to the consent of any third party.
2. Google Maps Specific Terms. In addition to your agreement with the foregoing Terms of Service, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of the Google Maps functionality that may be embedded in the Service. Your use of such functionality is governed by the Google Maps/Google Earth Additional Terms of App, which are available at http://www.google.com/help/terms_maps.html, and by the Google Privacy Policy, which is available at https://www.google.com/policies/privacy/. By using such functionality, you agree to be bound by the then-current versions of the Google Maps/Google Earth Additional Terms of App and Google Privacy Policy.
3. Microsoft Bing Maps Specific Terms. In addition to your agreement with the foregoing Terms of Service, your use of any Bing Maps functionality embedded within the Service shall be subject to the terms of use found at http://www.microsoft.com/maps/assets/docs/terms.aspx.
4. DATA RIGHTS, USES, AND LIMITATIONS
4.1 User Data; Protections. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, of User Data, and you agree that Scout shall not be responsible or liable for the unauthorized access to, alteration of, or deletion, correction, destruction, corruption, damage, loss, or failure to secure or store User Data arising from your use, or your User’s use, of the Service. You acknowledge and agree that you bear sole responsibility for adequately controlling, processing, storing, and backing up User Data. Scout reserves the right, but not the obligation, to refuse to post or to remove any information or materials, in whole or in part, that Scout believes to be unacceptable, undesirable, or in violation of these Terms of Service or the rights of third parties.
4.2 User Data Representations. You represent, warrant, and covenant that: (1) you have all necessary rights and licenses to grant Scout the rights set forth herein; (2) you have obtained all consents necessary under applicable law to disclose User Data to Scout; and (3) you will not publish, post, upload, record, or otherwise distribute or transmit any data or other material that: (i) infringes or would infringe any copyright, patent, trademark, trade secret or other Intellectual Property Rights or proprietary right of any party, or any rights of publicity or privacy of any party; (ii) violates any law, statute, ordinance, or regulation; (iii) is inappropriate, profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful; (iv) is harmful to minors or otherwise pornographic; (v) is materially false, misleading, or inaccurate; and/or (vi) contains information for which you not have the right to permit Scout to access and process any User Data.
4.3 Privacy. Scout processes Personal Information in accordance with its privacy notice which can be accessed here.
4.4 Usage Data. Scout may generate de-identified data, statistics, and other performance or usage-related information (“Usage Data”) while providing the Service to you. You acknowledge and agree that, as between you and Scout, all Usage Data is and shall remain the property of Scout. Scout may use, aggregate, and share Usage Data for the purposes of providing the Service, conducting research, preparing industry benchmarking reports, product development, training of AI Technology, and other commercial uses subject to applicable law. Scout will ensure that you and/or your Users cannot be identified through the Usage Data or any derivative thereof.
4.5 Feedback. Scout welcomes comments, feedback, information, or materials regarding the Service or any of the other Scout products or services (collectively, “Feedback”). By submitting Feedback to Scout, you agree to assign, and hereby irrevocably assign to Scout, all right, title, and interest, on a worldwide basis, in and to the Feedback and all copyrights, moral rights, and other Intellectual Property Rights embodied in such. Scout will be free to use, copy, distribute, publish, and modify the Feedback on an unrestricted basis, without compensation to you.
5. FEES AND PAYMENT
5.1 Payment Terms. Any fees payable to permit you to access and use the Service on your Practice’s behalf will be paid by the Practice to Scout. Unless otherwise agreed to by you and Scout in writing, Scout will not charge you on a personal basis any fees to access and use the Service on your Practice’s behalf. Practice’s payment of fees shall be set forth under a separate written agreement entered into by Practice and Scout.
5.2 Suspension. If your Practice fails to pay any undisputed amount Fees for the Service, and such Fees become overdue, we may, upon prior notice, and without limiting our other rights and remedies, suspend your access to the Service until such overdue amounts are paid in full.
6. TERM AND TERMINATION
6.1 Term. You will be bound for the entire Term of these Terms of Service. “Term” is defined as the period beginning on the Effective Date and shall continue until terminated in writing by either party or when terminated in accordance with Section 6.2 below.
6.2 Termination of Access. You may stop using the Service at any time for any reason subject to your obligations to your Practice. Your discontinuation of use is your sole right and exclusive remedy with respect to any termination related to these Terms of Service. Upon your stopping use of the Service, these Terms of Service will no longer apply to you except for any provisions that by their nature must survive termination.
6.3 Effect of Termination. Unless required by law, Scout shall have no obligation to maintain or provide any of your User Data upon or after termination and may unless legally prohibited, delete all your User Data in our systems or otherwise in our possession or under our control.
7. NO WARRANTY; DISCLAIMER
7.1 SCOUT MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. THE SERVICE IS PROVIDED BY SCOUT AND ITS LICENSORS “AS IS” AND “AS AVAILABLE.” YOU ASSUME ALL RISK FOR YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ANY HARM CAUSED BY VIRUSES, THIRD PARTY MATERIALS, USE OF THIRD PARTY PROVIDED SERVICES OR PRODUCTS (INCLUDING ANY BODILY, PHYSICAL, OR PROPERTY DAMAGE OR DEATH) OR OTHER DAMAGING MATERIALS. IN NO EVENT DOES SCOUT GUARANTEE ANY RESULTS FOR YOU. SCOUT DOES NOT WARRANT THAT THE SERVICE, OR ANY PORTION THEREOF, IS ACCURATE, ERROR OR BUG FREE, THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE’S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. THIS SECTION APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. SCOUT MAKES NO REPRESENTATIONS THAT THE SERVICE OR ANY COMPONENT THEREOF IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES OUTSIDE THE UNITED STATES. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS.
8. INDEMNIFICATION
8.1 Scout Indemnification. Scout shall defend you against any third party claims that the Service infringes any United States patent, trademark, or copyright or misappropriates any trade secret (to the extent it qualifies as a trade secret under US law) (“Infringement Claim”), and shall indemnify you for any costs and damages finally awarded by a court of competent jurisdiction or agreed upon in settlement with respect to such Infringement Claims, provided Scout is promptly notified of any such Infringement Claim related thereto and given reasonable assistance and sole control over defense and settlement. Scout will not be responsible for any settlement it does not preapprove in writing. The foregoing obligations do not apply with respect to the Service or portions or components thereof which are: (1) not supplied by Scout, (2) modified after delivery or provisioning of access by Scout, or (3) combined with other products, processes, or materials where the alleged infringement relates to such combination. Additionally, Scout shall have no obligation to indemnify you under this Section 8.1 where you continue any allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or where your use of the Service is not in accordance with these Terms of Service or with the Documentation.
8.2 Your Indemnification. You agree to defend, indemnify, and hold harmless each of Scout, its affiliates and respective officers, employees, consultants, shareholders and representatives from and against any and all claims, liabilities, damages, and/or costs (including attorneys’ and expert witness fees, costs and other expenses) arising out of or related to any actual or alleged claims involving or resulting from: (1) violation of these Terms of Service or applicable law, rule or regulation by you or any person accessing or using the Service by or through you; (2) infringement or misappropriation by you, or any person accessing or using the Service by or through you, of any Intellectual Property Right, privacy right or other right of any person or entity (except claims of infringement or misappropriation arising solely from use of the Service as provided under these Terms of Service); (3) acts and omissions of you or your Users, or arising out of or relating to your relationship with any of your Users; (4) User Data; or (5) you or your Users’ use, consumption, access, or ordering of products or services through the Service, including to the extent causing bodily harm, economic harm, or property damage to you or another user. Scout reserves the right, at its own expense and its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. Scout bears no responsibility for any acts or omissions of a third party in the performance of services or provisioning of Third Party Materials. Your use of the Service and interaction with third parties is solely at your risk and you agree to indemnify, defend, and hold Scout harmless from and against any and all use of, access to, or interaction with products and services rendered by a third party (whether implemented through the Service or otherwise).
9. LIMITATION OF LIABILITY
9.1 Limitation. IN NO EVENT SHALL SCOUT AND/OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES (“RELEASED PARTIES”) AGGREGATE LIABILITY UNDER THESE TERMS OF SERVICE EXCEED THE TOTAL AMOUNT PAID FROM YOUR PRACTICE TO SCOUT AS CONSIDERATION FOR USE OF THE SERVICE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL RELEASED PARTIES BE LIABLE FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE OR ARISING FROM THIRD PARTY MATERIALS, PRODUCTS OR SERVICES, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO USE THE SERVICE OR THIRD PARTY MATERIALS, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY, ANIMAL INJURY, DEATH, ECONOMIC INJURY, OR PROPERTY DAMAGE OF ANY NATURE, OR UNAUTHORIZED ACCESS TO THE SERVERS, OR SERVER UNAVAILABILITY, HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY AND WHETHER OR NOT SCOUT WAS AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10. MISCELLANEOUS
10.1 Choice of Law; Arbitration. These Terms of Service and the rights of the parties hereunder will be governed by and construed in accordance with the laws of the State of Delaware, exclusive of conflict or choice of law rules. EXCEPT FOR DISPUTES THAT QUALIFY FOR AND ARE FILED IN SMALL CLAIMS COURT, ALL DISPUTES ARISING EXCLUSIVELY OUT OF THESE TERMS OF SERVICE, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT SCOUT AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THESE TERMS OF SERVICE WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, as amended by these Terms of Service. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by Scout that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination will be made by the arbitrator. The arbitrator’s decision will follow the terms of these Terms of Service and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms of Service, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The courts of New Castle County in the State of Delaware will have exclusive jurisdiction to settle any claim, dispute or matter of difference that may arise out of or in connection with the arbitration.
10.2 Independent Contractors. You understand and expressly agree that you and Scout are independent contractors and not agents or employees of the other party. Neither you nor Scout has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
10.3 Notices. Any notice given under these Terms of Service shall be in writing and in the English language and shall be emailed to Scout at the contact set forth in the Service, or if to you, to the email or physical address associated with your Account. You hereby consent to receiving any notices relevant to the Service or these Terms of Service by email.
10.4 Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood, or other acts of God, labor conditions, power failures, and Internet disturbances (each, a “Force Majeure Event”). If a Force Majeure Event causes delays in performance by either party for a period longer than ninety (90) days, these Terms of Service may be terminated in accordance with Section 6.2.
10.5 Consent to Do Business Electronically. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law.
10.6 Equitable Relief. You agree that your breach of the terms and responsibilities under these Terms of Service would cause irreparable harm and significant injury to Scout which would be both difficult to ascertain and for which there is no adequate remedy at law and that Scout shall be entitled, in addition to any other rights and remedies it may have, to injunctive relief (without the requirement of posting bond), specific performance and other equitable remedies to restrain any threatened, continuing, or further breach, or other equitable relief without prejudice to any other rights and remedies Scout may have under these Terms of Service.
10.7 Entire Agreement. These Terms of Service constitute the entire agreement between you and Scout with respect to the subject matter hereof and supersedes all prior agreements, both oral and written
10.8 Waiver; Severability. Either party’s failure to enforce any provision of these Terms of Service will not be deemed to be a waiver of its right to enforce them. If any term or provision of these Terms of Service will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of these Terms of Service will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of these Terms of Service.
10.9 Publicity. If you are a Practice, you hereby consent to inclusion of your name in Scout lists that may be published as part of Scout’s marketing and promotional efforts. Scout may identify you as a User when referring to lists of its Users.
10.10 Assignment. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under these Terms of Service without the prior written consent of Scout. Any purported assignment without Scout’s consent will be void and will constitute a breach of these Terms of Service. Scout may assign these Terms of Service or delegate or subcontract its obligations under these Terms of Service at any time.
10.11 Survival. The following articles and sections will survive the expiration or termination of these Terms of Service for any reason: Sections 2.6, 3.4, 4.4, 4.5, and 6.3; Articles 1, 8, 9, and 10; and to the extent such sections discuss liability and any limitations thereof, Sections 2.5, 2.7, and 2.8.