Custom Database Terms and Conditions
Effective Date: October 8, 2018
- "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Pedigree Online in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to the Terms and (ii) for whom access to the Services has been purchased hereunder.
- "Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
- "Documentation" means Pedigree Online's end user documentation relating to the Services available at https://www.pedigreeonline.com/knowledgebase/pedigree-software.
- "Downtime" means the Services are not functioning in a material way or are not generally available via the Internet.
- "Order Form" means the Order Form that Customer fills out to order the Custom Database Services, which is incorporated into the Terms by reference.
- "Pedigree Online IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Pedigree Online IP includes Aggregated Statistics and any information, data, or other content derived from Pedigree Online's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
- "Services" means the Custom Database Services comprised of a series of elements consisting of:
- A pedigree website using a subdomain under pedigreeonline.com that will interface with the custom database (e.g. yourname.pedigreeonline.com);
- The pedigree website will display various pedigree-related reports, including but not limited to pedigree reports up to 9 generations, offspring reports, sibling reports, and a hypothetical mating tool generated from your data. The pedigree website may be made private or public at the discretion of the customer, as well as some ability to customize the color scheme and utilize a provided logo;
- Administrative tools: An administration area for managing, adding, deleting or editing authorized users and their roles and capabilities within the pedigree website;
- Web-based input forms where animal database records can be added, edited or deleted;
- A database that contains your data, including animal information, photos, performance, character, conformation and other related information used in pedigrees and associated reports.
- "Third-Party Products" means any third-party products described in the Order Form provided with or incorporated into the Services.
2. Access and Use
- Provision of Access. Subject to, and conditioned on Customer's payment of fees described in the Order Form ("Fees") and compliance with all other terms and conditions of the Terms and Pedigree Online's Website, Pedigree Online hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein and solely for non-commercial purposes. Pedigree Online shall provide to Customer the necessary passwords and network links to allow Customer and its Authorized Users to access the Services.
- Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in the Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Reservation of Rights. Pedigree Online reserves all rights not expressly granted to Customer in the Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in the Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Pedigree Online IP.
- Suspension. Notwithstanding anything to the contrary in the Terms, Pedigree Online may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Pedigree Online reasonably determines that (A) there is a threat or attack on any of the Pedigree Online IP; (B) Customer's or any Authorized User's use of the Pedigree Online IP disrupts or poses a security risk to the Pedigree Online IP or to any other customer or vendor of Pedigree Online; (C) Customer, or any Authorized User, is using the Pedigree Online IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Pedigree Online's provision of the Services to Customer or any Authorized nd User is prohibited by applicable law; (ii) any vendor of Pedigree Online has suspended or terminated Pedigree Online's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Pedigree Online shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Pedigree Online shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Pedigree Online will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
- Aggregated Statistics. Notwithstanding anything to the contrary in the Terms, Pedigree Online may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Pedigree Online and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Pedigree Online. Customer acknowledges that Pedigree Online may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Pedigree Online may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
3. Free Trial
You may try the Services for an initial free trial period as indicated on the Order Form. During the free trial period, the Terms are in full force and effect, except that no Fees will be due to use the Services. At the expiration of the free trial period, you must either pay the Fees due for the Services ordered or your access to the Services will be immediately terminated. You may cancel your Services at any time during the free trial period by notifying Pedigree Online via email or your administration area without penalty or fees.
4. Customer Responsibilities
- General. Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of the Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Terms if taken by Customer will be deemed a breach of the Terms by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of the Terms' provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
- Third-Party Products. Pedigree Online may from time to time make Third-Party Products available to Customer. For purposes of the Terms, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.
5. Service Levels and Support
- Service Levels. Subject to the Terms, Pedigree Online shall use commercially reasonable efforts to make the Services available to you, except for: (a) scheduled Downtime; (b) maintenance Downtime (including emergency maintenance Downtime); (c) service Downtime or degradation due to a force majeure event; (d) Downtime due to failure of the Internet or failure of Customer's network or Internet access; (e) any other circumstances beyond Pedigree Online's reasonable control, including Customer's or any authorized user's use of third party materials, misuse of the Services, or use of the Services other than in compliance with the express terms of these Terms and the documentation; and (f) any suspension or termination of Customer's or any authorized users' access to or use of the Services as permitted by this Agreement. Pedigree Online does not guarantee that the Services will always be available and is not liable for any damage or harm incurred by you if the Services are unavailable.
- Support. The access rights granted hereunder entitles Customer to the support services located at https://support.pedigreeonline.com for the duration of the Terms following the Effective Date and thereafter.
- Data Backup. The Services do not include backup of Customer Data. However, Pedigree Online my backup Customer data from time to time for Pedigree Online's own use. If Customer would like a backup of Customer Data, Pedigree may, but is under no obligation to, provide a backup, if available, of Customer Data to Customer for a fee. PEDIGREE ONLINE HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
6. Fees and Payment
Customer shall pay Pedigree Online the Fees as set forth in the Order Form. If Customer fails to make any payment when due, without limiting Pedigree Online's other rights and remedies: (i) Customer shall reimburse Pedigree Online for all reasonable costs incurred by Pedigree Online in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (ii) if such failure continues for seven days or more, Pedigree Online may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full. Fees are subject to change prior to the beginning of a renewal term. Pedigree Online will notify Customer at least twenty (20) days prior to the end of the term if a change in the Fees will be made.
7. Confidential Information
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under the Terms, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of the Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law
8. Intellectual Property Ownership; Feedback
- Pedigree Online IP. Customer acknowledges that, as between Customer and Pedigree Online, Pedigree Online owns all right, title, and interest, including all intellectual property rights, in and to the Pedigree Online IP and, with respect to Third-Party Products, the applicable third-party Pedigree Online's own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
- Customer Data. Pedigree Online acknowledges that, as between Pedigree Online and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Pedigree Online a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Pedigree Online to provide the Services to Customer.
- Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Pedigree Online by mail, email, telephone, or otherwise, suggesting or recommending changes to the Pedigree Online IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Pedigree Online is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Pedigree Online on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Pedigree Online is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Pedigree Online is not required to use any Feedback.
9. Warranty Disclaimer
THE PEDIGREE ONLINE IP, SERVICES, AND WEBSITE ARE PROVIDED "AS IS" AND PEDIGREE ONLINE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PEDIGREE ONLINE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PEDIGREE ONLINE MAKES NO WARRANTY OF ANY KIND THAT THE PEDIGREE ONLINE IP, SERVICES, OR WEBSITE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- Customer Indemnification. Customer shall indemnify, hold harmless, and, at Pedigree Online's option, defend Pedigree Online from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Customer Data, or any use of the Customer Data in accordance with the Terms, infringes or misappropriates such third party's intellectual property rights, and/or any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by the Terms; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Pedigree Online or authorized by Pedigree Online in writing; or (iv) modifications to the Services not made by Pedigree Online, provided that Customer may not settle any Third-Party Claim against Pedigree Online unless Pedigree Online consents to such settlement, and further provided that Pedigree Online will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Limitations of Liability. IN NO EVENT WILL PEDIGREE ONLINE BE LIABLE UNDER OR IN CONNECTION WITH THE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PEDIGREE ONLINE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PEDIGREE ONLINE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED S THE TOTAL AMOUNT PAID TO PEDIGREE ONLINE BY THE CUSTOMER IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Term and Termination
- Term. The term of the Terms begins on the Effective Date, unless terminated earlier pursuant to the Terms' express provisions, will continue in effect for the initial period indicated in the Order Form and will thereafter automatically renew for successive additional periods of equal duration or as otherwise described in the Order Form (the "Term"). Customer must cancel the Services, Terms and/or Order Form through their administration area or via email prior to the end of the initial period or renewal period. If Customer fails to cancel prior to this date, the Services will renew automatically for an additional renewal period.
- Termination. In addition to any other express termination right set forth in the Terms, Pedigree Online may terminate the Services, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than seven days after Pedigree Online's delivery of written notice thereof; or (B) breaches any of its obligations the Terms;
- Survival. This Section 11(c) and Sections 1, 6, 7, 8, 9, 10, and 12 survive any termination or expiration of the Terms.
- Force Majeure. In no event shall Pedigree Online be liable to Customer, or be deemed to have breached the Terms, for any failure or delay in performing its obligations under the Terms, if and to the extent such failure or delay is caused by any circumstances beyond Pedigree Online's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- Amendment and Modification; Waiver. No amendment to or modification of the Terms is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Terms will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any provision of the Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Third Party Beneficiary. Pedigree Online offers the Services using software licensed to it by Select Web Ventures LLC. Pursuant to the terms of this license, Select Web Ventures LLC is a third party beneficiary of the Terms and, to the extent your use of the Services relates to Select Web Ventures LLC's software, Select Web Ventures LLC may enforce these Custom Database Terms and Conditions against you.
- Governing Law; Submission to Jurisdiction. the Terms is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to the Terms or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of California in each case located in the city of San Diego and County of San Diego, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise. the Terms is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.