Xoult Terms of Use

Effective Date: February 26, 2019

Xoult operates Symptomedic (the “Application”) and offers various services, on or through the Application (collectively, the “Services”). Xoult provides the Services to assist you in tracking Your pet’s behavior, symptoms, doctor’s notes and other health records. PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING OUR SERVICES.

Acceptance of Terms

THESE TERMS OF USE, AS AMENDED FROM TIME TO TIME AND PUBLISHED AT HTTPS://XOULT.COM/TERMS.HTML, AND AS INCORPORATING THE XOULT PRIVACY POLICY AVAILABLE AT HTTPS://XOULT.COM/PRIVACY.HTML (“TERMS OF USE”), ARE A LEGAL AGREEMENT BETWEEN Xoult (“XOULT”) AND YOU (“YOU”). YOU MUST READ AND AGREE TO THESE TERMS OF USE, INCLUDING THE PRIVACY POLICY, BEFORE USING THE APPLICATION AND SERVICES CONTROLLED BY XOULT. BY USING THE APPLICATION AND/OR THE SERVICES, YOU AGREE TO THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT USE THE APPLICATION AND/OR THE SERVICES. You are responsible for regularly reviewing the Terms of Use, as the Terms of Use may be modified at any time. All such modifications will be effective immediately upon posting. If You are dissatisfied with any modification to the Terms of Use, Your only remedy is to terminate Your use of the Application and/or the Services, as described in Section 12 (Termination and Survivability) of these Terms of Use. Your continued use of the Application and/or the Services after a change or update has been made to the Terms of Use constitutes Your acceptance of such change or update.

Eligibility

YOU MUST BE AT LEAST 18 YEARS OF AGE TO USE THE APPLICATION AND/OR THE SERVICES. By using the Application and/or the Services, You represent and warrant that: You are 18 years of age or older; All registration information You submit to Xoult is truthful and accurate; You will maintain the accuracy of such information; and Your use of the Application or the Services does not violate any applicable law or regulation.

Use of Services

Provided that You comply with these Terms of Use, Xoult grants You a limited, revocable, non exclusive, non assignable, non sublicensable license and right to access the Application and Services, through a generally available mobile device, to view information and use the Application and Services offered by Xoult.

User Accounts

To use the Application and/or the Services, You may be required to create a user account (“Account”). If You create an Account, You agree to provide Xoult current, complete, true and accurate information, and to update this information should it change. Xoult may suspend, terminate, modify, or delete Your Account with or without notice to You, at any time for any reason or for no reason, including but not limited to for violation of the Terms of Use. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR PASSWORD AND FOR ANY AND ALL ACTIVITIES THAT OCCUR IN ASSOCIATION WITH YOUR ACCOUNT, WHETHER OR NOT AUTHORIZED BY YOU. You agree to notify Xoult immediately of any unauthorized use of Your Account or any other breach of security and to provide properly documented evidence as requested by Xoult. You may not use anyone else’s Account at any time and You may not allow anyone else to use Your Account at any time. You agree that Xoult will not be liable for any loss You may incur as a result of someone else using Your password or Account, either with or without Your knowledge, and You further agree that You will be liable for losses incurred by Xoult or another party due to someone else using Your Account or password. XOULT RESERVES THE RIGHT TO TERMINATE OR SUSPEND YOUR ACCOUNT AND/OR ACCESS TO THE APPLICATION AND/OR THE SERVICES AT ANY TIME, FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE TO YOU. XOULT ALSO RESERVES THE RIGHT TO CHANGE OR DISCONTINUE ANY SERVICE OR FEATURE PROVIDED BY XOULT, INCLUDING, WITHOUT LIMITATION, THE APPLICATION AND THE SERVICES, AT ANY TIME AND WITHOUT NOTICE. YOU AGREE THAT XOULT SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY SUCH TERMINATION, SUSPENSION, CHANGE OR DISCONTINUANCE. In the event that Your Account is terminated, suspended or canceled, You will have no further access to Your Account, Content or anything associated with it.

Ownership of Content

“Content” shall mean including, without limitation, data, images, drawings, photographs, video, audio, text, and any and all other material and information You see on the Application and/or the Services, whether provided by Xoult or by users of the Services. ALL USE OF CONTENT IS PROVIDED “AS IS” AND AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT ALL CONTENT IS THE PROPERTY OF XOULT AND/OR ITS LICENSORS AND THAT YOU HAVE NO INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS IN ANY CONTENT, REGARDLESS OF WHETHER THAT CONTENT WAS PROVIDED BY XOULT, YOU, OR ANOTHER USER OF THE SERVICES. You acknowledge that the Content, Services and Application are protected by copyrights, trademarks, and other proprietary rights owned by Xoult, and/or its licensors, including rights to the selection, coordination, arrangement and enhancement of such Content, and that these rights are valid and protected in all media existing now or later developed. Except as expressly provided herein, Xoult and its licensors do not grant You any express or implied rights, and all right, title and interest that Xoult has in the Application and/or the Services, which are not expressly granted by Xoult to You, are retained by Xoult. No Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted or sold in any form or by any means, in whole or in part, without Xoult’s prior written permission, except that the foregoing does not apply to Your own posted submissions. You agree that You may not upload or otherwise transmit, on or through the Service, Content that is subject to any third party rights, unless any holder of such rights has given express authorization for distribution on the Application and/or the Services. You agree that any Content You submit does not create an obligation for Xoult to provide You any payment or other remuneration. If and to the extent You are deemed to have retained, under applicable law, any right, title or interest in or to any portion of the Content, You hereby transfer, grant, convey, assign and relinquish exclusively to Xoult all of Your right, title and interest in and to the Content, without reservation and without additional consideration, under applicable patent, copyright, trade secret, trademark and other similar laws or rights, in perpetuity, and in the alternative, to the extent such assignment is ineffective under applicable law, You hereby grant to Xoult, the exclusive, irrevocable, sublicensable, transferable, worldwide, paid-up license to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice the Content, all modified and derivative works thereof, all portions and copies thereof in any form, all inventions, designs, and marks embodied therein, and all patent, copyright, trade secret, trademark and other intellectual property rights thereto, and/or to incorporate the same in other works in any form, media, or technology now known or later developed. To the extent permitted by applicable laws, You hereby waive any moral rights You may have in the Content.

User Submissions

Xoult does not accept or consider unsolicited ideas, including ideas for new promotions, products, technologies or processes (collectively, “User Submissions”). You must not transmit any User Submission to or through the Application or to Xoult through email that You consider to be confidential or proprietary, and any User Submissions shall be deemed non-confidential. You are responsible and liable for any User Submissions. You agree, represent and warrant that any User Submission is: Truthful, accurate, and not misleading, Offered in good faith, and That You have the right to transmit such information. Certain information submitted by You, or otherwise collected from You, is subject to Xoult’s Privacy Policy. Except as expressly provided in Xoult’s Privacy Policy, You agree that by submitting User Submissions to Xoult, including any concepts, know-how or ideas, You hereby grant Xoult a perpetual, worldwide, non-exclusive, royalty-free, sub licensable and transferable license to use, reproduce, distribute, prepare derivative works of and display the User Submissions in connection with the Application and Xoult’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the User Submission (and derivative works thereof) in any media formats and through any media channels whether now known or hereafter developed, without payment or accounting to You or others.

Limitations

ANY USE OF THE SERVICES IN VIOLATION OF THESE TERMS OF USE WILL BE REGARDED AS AN INFRINGEMENT OF XOULT’S COPYRIGHT RIGHTS IN AND TO THE CONTENT. You may not, under any circumstances, modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, adapt, translate, transfer, buy, auction, rent, lease, loan or sell any Content, or other materials appearing in or generated by the Application or Services, or any information obtained from the Application or the Services, without the prior express written consent of Xoult. You may not, under any circumstances, exploit the Content or the Services for any purpose whatsoever. You may not, under any circumstances, use the Content or the Services in any manner that: is unlawful; could damage, disable, overburden, or impair any Xoult server or the network(s) connected to any Xoult server; could interfere with any other party’s use and enjoyment of the Services; gains or attempts to gain unauthorized access to any Services, unpublished information or material, other users’ Accounts, or computer systems and/or networks connected to any Xoult server, or to any of the Services, through hacking, password mining or any other means; collects or aggregates information regarding other users’ actions relating to the Services; or reverse engineers, decompiles, disassembles or attempts to reverse engineer, decompile, or disassemble any part of the Content or Application.

Communications

By providing Your email address to Xoult and subscribing to Xoult communications, You understand You may receive periodic information regarding current and future services offered on the Application and/or the Services and/or related third party products. You may unsubscribe at any time by terminating Your Account as described in Section 12 (Termination and Survivability).

Privacy/Security

You understand that any information provided by You or collected by Xoult in connection with Your use of the Application and/or Services will be used in the manner described in these Terms of Use and in Xoult’s Privacy Policy HTTP://XOULT.COM/PRIVACY.HTML, such Privacy Policy being incorporated into and made a part of these Terms of Use by this reference. If You do not agree to the Privacy Policy you may not use the Services. Without limiting the terms of the Privacy Policy, You understand that Xoult does not guarantee that Your use of the Services and/or the information provided by You will be private or secure, and Xoult is not responsible or liable to You for any lack of privacy or security You may experience. You are fully responsible for taking precautions and providing security measures best suited for Your situation and intended use of the Services.

Jurisdictional Issues and Export Control Laws

The Application and/or Services are controlled and operated by Xoult from its offices within the United States. Xoult may utilize third parties overseas to provide application support and development. Xoult makes no representation that Content and other materials available through the Application and/or Services are appropriate or available for use in any location outside the United States. Those who choose to access the Application and/or Services from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You agree to abide by applicable export control laws and not to transfer, by electronic transmission or otherwise, any Content or other materials subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Application any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. The Content may not be re-exported, downloaded or otherwise exported into (or to a national or resident of) any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that You are not located in, under the control of, or a national or resident of any country or on any such list.

Termination and Survivability

These Terms of Use are effective until terminated. Xoult may terminate these Terms of Use with or without notice to You by terminating Your Account as set forth in Section 3 (User Accounts). You may terminate these Terms of Use and Your Account by sending an email stating Your intention to terminate these Terms of Use to Xoult at: CONTACT@XOULT.COM, Attn: Accounts Department with the subject line “Account Termination”. Such termination will not be effective until acknowledged by Xoult, but not more than twenty (20) business days after sending such termination email. The provisions of Sections 5 (Ownership of Content), 6 (Limitations), 8 (Use of Copyrighted, Trademarked or Other Protected Material), 12 (Termination and Survivability), 14 (Disclaimer of Warranty; Limitation of Liability), 15 (Indemnity), and 16 (Jurisdiction and Choice of Law) shall survive any termination of these Terms of Use.

Links to Third Party Sites

The Application may link to third party sites and/or applications (“Linked Sites”). These Linked Sites are not controlled by Xoult. Xoult is not responsible for the information of the Linked Sites, for the business practices or privacy policies of the Linked Sites, or for the collection, use or disclosure of any information by the Linked Sites. Xoult provides links to the Linked Sites only as a matter of convenience, and the inclusion of any link does not imply an endorsement by Xoult of any Linked Site. You acknowledge and agree that Xoult does not endorse, and shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such information, goods or services available on or through any Linked Sites. You agree that Your use of the Linked Sites, including without limitation Your use of any information, data, advertising, products, or other materials on or available through the Linked Sites, is at Your own risk and is subject to the term and conditions or use applicable to the Linked Sites. Xoult is not involved in any way in the actual transaction between the Linked Sites and You. Xoult acts solely as a passive conduit for the Linked Sites’ sales, distribution and the communication of Your information with regards to transaction with Linked Sites. You assume any and all risks, known or unknown, now existing or hereafter arising, related to the transactions with the Linked Sites’ items, including, but not limited to, completing transactions, default, negligence, unauthorized use of Your Account and password and other users acting under false identity. You acknowledge that Xoult is not a party to any possible future disputes between You and the Linked Sites. Resolution of any dispute is the full and sole responsibility of the involved parties and Xoult will not act as a mediator between them. You release Xoult, its agents, representatives and employees, from any and all claims, demands and damages, direct and indirect, suspected and unsuspected, arising from such dispute.

Disclaimer of Warranty; Limitation of Liability

XOULT, ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, LICENSORS, DISTRIBUTORS, SUBLICENSEES, AGENTS AND SUBCONTRACTORS (COLLECTIVELY, THE “XOULT PARTIES”) ASSUME NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY YOU, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA FROM DELAYS, ERRORS, SYSTEM DOWN TIME, OR SERVICE INTERRUPTIONS CAUSED BY THE XOULT PARTIES, ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON THE APPLICATION AND/OR SERVICES, OR BY YOUR OR OTHER USERS’ USE OF THE APPLICATION AND/OR SERVICES, ERRORS AND/OR OMISSIONS. YOU ACKNOWLEDGE AND AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THE XOULT PARTIES IS TO STOP USING THE APPLICATION AND/OR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE APPLICATION, SERVICES AND ANY CONTENT ARE ENTIRELY AT YOUR OWN RISK. THE APPLICATION AND/OR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE) OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES OR CONDITIONS ARE LEGALLY INCAPABLE OF EXCLUSION. THE INFORMATION CONTAINED IN THE APPLICATION AND/OR SERVICE IS NOT A SUBSTITUTE FOR PROFESSIONAL VETERINARY ADVICE, DIAGNOSIS OR TREATMENT. YOU ASSUME FULL RESPONSIBILITY FOR HOW YOU CHOOSE TO USE THE INFORMATION CONTAINED IN THE APPLICATION AND/OR SERVICE AND XOULT WILL NOT BE RESPONSIBLE FOR HOW YOU USE THE INFORMATION. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE APPLICATION. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE APPLICATION AND CONTENT AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF THE XOULT PARTIES, WHETHER MADE ON THE APPLICATION, IN THE CONTENT OR OTHERWISE, SHALL CREATE ANY WARRANTY. THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION APPLY TO ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS) OR INJURY CAUSE BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. IN NO CASE SHALL THE LIABILITY OF THE XOULT PARTIES TO YOU EXCEED ONE HUNDRED DOLLARS. IN NO CASE SHALL THE XOULT PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE APPLICATION, SERVICES, OR THE CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE APPLICATION, SERVICES, OR THE CONTENT, OR INTERACTIONS WITH XOULT. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY THE XOULT PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. XOULT EXPRESSLY DISCLAIMS ALL REPRESENTATION AND WARRANTIES REGARDING GOODS OR SERVICES YOU OBTAIN FROM THIRD PARTIES DURING YOUR USE OF THE APPLICATION AND/OR SERVICES. YOU AGREE TO LOOK SOLELY TO THIRD PARTIES FOR ANY AND ALL CLAIMS REGARDING SUCH TRANSACTIONS WITH THIRD PARTIES. ANY REFERENCE TO A PERSON, ENTITY, PRODUCT, OR SERVICE ON THE APPLICATION DOES NOT CONSTITUTE AN ENDORSEMENT OR RECOMMENDATION BY XOULT OR ANY OF ITS EMPLOYEES. NO COMMUNICATION OF ANY KIND BETWEEN YOU AND XOULT OR A REPRESENTATIVE OF XOULT SHALL CONSTITUTE A WAIVER OF ANY LIMITATIONS OF LIABILITY HEREUNDER OR CREATE ANY WARRANTY.

Indemnity

You agree to defend, indemnify and hold harmless Xoult and its directors, officers, employees, agents, shareholders, licensors, parent companies and representatives, from and against all claims, losses, costs and expenses (including without limitation reasonable attorneys’ fees) arising out of: Your use of, or activities in connection with the Application, including the Services; Any violation of these Terms of Use by You or through Your Account or using Your user name; or Any allegation that any information, messages, or materials that You make available or create through the Application and/or Services infringe or otherwise violate the copyright, trademark, trade secret, privacy or other intellectual property or other rights of any third party.

Jurisdiction and Choice of Law

These Terms of Use, and any disputes arising from or relating to the conduct covered by the Terms of Use, are governed by the laws of the State of California. You hereby submit to the exclusive jurisdiction, including waiving any objection to personal jurisdiction, of the courts of Santa Clara County, California without regards to any principles of conflicts of laws and the United Nations Convention on Contracts for the International Sale of Goods. Those who choose to access the Application and/or the Services from locations outside of California do so on their own initiative contrary to the terms of these Terms of Use, and are responsible for compliance with local laws if and to the extent local laws are applicable.

Assignment

Xoult may assign these Terms of Use, in whole or in part, at any time. You may not assign, transfer or sublicense these Terms of Use or any or all of Your rights or obligations under these Terms of Use without Xoult’s express prior written consent.

Waiver

No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.

Headings

Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.

Notice

Notices to You may be made via posting to the Application, by email, or by regular mail, in Xoult’s discretion. Xoult may also provide notices of changes to these Terms of Use or other matters by displaying such notices or by providing links to such notices on Xoult’s website. Without limitation, You agree that a printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Severability

If any part of these Terms of Use are determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Use shall continue in effect.

Complete Agreement

These Terms of Use, including the documents expressly incorporated by reference, constitute the entire agreement between You and Xoult with respect to its subject matter. These Terms of Use supersede all prior or contemporaneous communications, whether electronic, oral or written, between You and Xoult with respect to its subject matter and You represent that You have not relied on any such communications in accepting these Terms of Use.

Notice for California Users

Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

Questions

If you have any questions, comments or complaints regarding these Terms of Use or the Application or Services, feel free to contact us at: CONTACT@XOULT.COM.

General Provisions

A printed version of these Terms of Use and of any notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The parties agree that all correspondence relating to these Terms of Use, shall be written in the English language.